The Supreme Court declined the opportunity to hear a challenge to penetrating internet surveillance powers exposed by former National Security Agency contractor Edward Snowden.
Justices turned down the appeal of Mohamed Osman Mohamud in a series of orders issued on Monday. They gave no reason why, as per standard procedure, considering the high number of cases before the court.
Mohamud was found guilty of attempting to set off explosives at a Portland, Ore. Christmas tree lighting in November 2010, in the name of Islamist fundamentalism. He was nineteen years old at the time of his arrest and the subject of an intense FBI sting.
Shortly after Mohamud’s conviction, in early 2013, federal prosecutors revealed that they had used some evidence collected under Section 702 of the FISA Amendments Act. The statute is used to justify sweeping digital surveillance outside of the United States.
In mid-2013, Snowden revealed that the NSA collects vast amounts of information about Americans under the law—both “incidentally” and through non-adversarial Foreign Intelligence Surveillance Courts.
In post-conviction filings and in their appeal, lawyers for Mohamud argued that Section 702 violates the First and Fourth Amendment and the separation of powers doctrine. They also claimed Mohamud was entrapped by the FBI.
The Somali-American teen had been the subject of a sting that started in November 2009, despite the fact that Mohamud’s own parents reported his activities to the Bureau in August 2009. Mohamud had told them he wanted to leave the country. The call from Mohamud’s father, pleading with authorities to stop his son, sparked the FBI’s initial investigation.
The District Judge who sentenced Mohamud said the young man had been “imperfect[ly] entrapped.” Judge Garr King found that agents acted improperly toward Mohamud “through their frequent praise and religious references, especially considering his youth.”
King ruled, however, that Mohamud’s intended crime was “horrific,” saying he wanted to inflict “a great deal of death and mutilation.” An appellate court upheld Mohamud’s conviction and his 30-year sentence.
In its ruling, the Ninth Circuit panel noted it had problems with the FISA Amendments Act.
“Although [Section] 702 potentially raises complex statutory and constitutional issues, this case does not,” Circuit Judge John Owens wrote on behalf of the panel.
“All this case involved was the targeting of a foreign national under [Section] 702, through which Mohamud’s email communications were incidentally collected,” Owens added.
Civil liberties advocates blasted the decision, despite the panel’s deference to their concerns. The Electronic Frontier Foundation, the Center for Democracy & Technology, and New America’s Open Technology Institute filed a friend of the court briefing before SCOTUS on behalf of Mohamud.
“Even if the Government claims to be targeting someone else who lacks Fourth Amendment rights, it is not entitled to ignore the rights of a US person who is entitled to that protection,” they wrote.
The Supreme Court’s denial of Mohamud’s request for a hearing means that the appellate judgment is upheld.
In December, Congress renewed Section 702 on a short-term basis, as the law faced an expiration deadline. After opposition to long-term renewal from both Republican and Democratic Senators, Congress extended it only to January 19—the same date the federal government next runs out of money.
