You're listening to Bloomberg Law. I'm Michael Best with June Grosso. Section seven or two of the Foreign Intelligence Surveillance Act allows the government to intercept the emails and phone calls of non Americans who live outside the United States without getting a warrant. But when the government does that, it will also capture calls and emails made between Americans and the targeted non Americans. Can the government use those Americans
communications and criminal investigations? The Ninth Circuit Court of Appeals says yes. And here to discuss their decision and the Foreign Intelligence Surveillance Act is the distinguished Constitutional Scholar from Harvard Law School, Noah Feldman, who is also a Bloomberg View contributor. No, welcome back to the program. Always a
pleasure to have you here. Thank you for having me um. So, are there any limits under the Foreign Intelligence Surveillance Act to what the government can read or listen to when when they're intercepting communications by non Americans? Well, in general, the answer his no. If you're a non American and you're outside the United States, then you're not protected by the law and the government can go ahead and listen
to you. What was at stake in this case, and what makes this case so significant is that it's not about communications solely involving non Americans outside the US. It's about communications by Americans in the US recorded by the US government inside the country. Now, will you explain the
situation a little bit what actually happened. Yeah, there was an investigation that involved a man named Mohammed Mohammad who was eventually convicted of an attempted bombing in Portland, Oregon, on Black Friday of at a Christmas tree raising ceremony. And as part of that investigation, the which incidentally came out of a staying operation and FBI sting operation. So as part of that investigation, the FBI had um traces
on communications of an unnamed person outside the US. It may well have been someone with whom Mohammed was communicating in Yemen, but we don't know that for sure from the records, and the US government recorded, the FBI recorded that Mohammed was sending emails from inside the US to
this person. The government then took those emails, read those emails, and brought them to a U S court and got a warrant to investigate Mohammed, and that led to the process ultimately in which he was um stung and then arrested that and sent to prison. And what did the
ninth Circuits say in upholding his conviction. The Ninth Circuit said that as long as the initial wire tapping, that is to say, the interception of the communications was targeted not at Mohammud, but it's someone outside the US, non American outside the US, then any emails by Americans written in the US that the government happened to intercept and
read or quote unquote incidental to the initial investigation. And because they were incidental, they were permitted without a wired without a warrant under the Fourth Amendment of the Constitution. No what so Section seven O two makes a distinction between targeted and untargeted surveillance. If the government is allowed to monitor emails of targeted non Americans living abroad without a warrant, can that be done without happening to see
an Americans exchange with one of those people. Well, it's definitely true that if the government is listening to the communication of somebody outside the US US, sometimes that person
will get communications from Americans. I mean, that could certainly happen, and I don't think anyone disputes that if that happens, the government could capture those The question is, can the government then read them and use them as evidence to commence or participate in an investigation against an American or does the government at that point need immediately to get
a warrant in order to read that. And that's the essence of the question in the case, Well, how if you allow this, If there's no Fourth Amendment problem with this situation, then how is it that courts can prevent the government from effectively doing a backdoor to get the Americans communications without a warrant by saying, well, we know this American is communicating with people outside the country, so
let's target them and then we'll get this Americans communications. Yeah, that's the big risk, and I think they're sort of
two ways potentially to solve that problem. One would be to say that if the government, let's say, wants to spy on me and they know that I email with a person I don't know in the United Kingdom, and the government then goes and listens to that person's communications and the hopes of capturing mine, that they were really targeting me all along and that they weren't targeting the other person, that it's not actually the case that they
were targeting them. The harder case is a scenario where the very reason that the government is interested in someone abroad us that they think that person might be talking to Americans. Imagine it's an al Qaeda recruiter and our great worries that the person might be talking to Americans, and the government then targets quote unquote that person and then says, oh, incidentally, we happen to have gotten all
these communications of Americans. That's the really tricky case, and that's the case in which the Court said it's fine, and in which my guess is other courts of appeal around the country are going to disagree and say that that's not incidental that the real targeting took place at the level of knowing that there would be Americans whose communications would be sent. No. In your Bloomberg You column, you suggest that this is going to end up at the Supreme Court. If it does, how is the court
likely to view this? That's going to depend on who the justices are when it takes place. And it's a great example of the kind of issue that may look extremely different after Justice. Scalia is replaced by, you know, by a Trump nominee, because the closest question on this would be whether Justice Kennedy, as a swing voter as he often is, would be on the liberal side of
the conservative side of the question. I think the liberal side would be to say, no, they can't target and and that this would count as targeting, and the conservative side would be to accept the Ninth Circuits ruling. So if this case were heard today, it might well be a four four tie. But if the case is heard after a new justice is added, then even then it would you know, very possibly go five four for the government. Now, this statute is controversial for this reason and some others
among people who are concerned about civil liberties. Is is there something Congress what to do for I mean, you know, if you've got the court saying this is okay, is there a fixed legislatively that Congress should consider. Yeah. I think Congress could clarify section seven or two of the of the law to define what counts as targeting and
what counts is incidental. And they could say, for example that if the government is choosing to listen to somebody abroad because they think that there will be Americans communicating with that person, then anything captured as part of that communication shouldn't be treated as only incidental, but should be treated as in fact um part of the targeting, and therefore would require a warrant. The question is would a Republican Congress with a Republican president be likely to amend
the law in that direction? And I have to say that its team is relatively unlikely. No. What the Ninth Circuit is considered one of the most liberal, if not the most liberal. What was the panel like that it came out with this decision? This was a panel dominated by Republican pointees. And it is possible that there will be a call for rehearing by the entirety of the Ninth Circuit. That happens a lot at the Ninth Circuit, more than in almost any other circuit in the country.
And they have a rigorous internal process whereby judges who don't like a specific outcome will call for rehearing in bank and then they have to vote on that. And so I think it's quite possible that they will be rehearing in bank on this issue. No One last thing in about thirty seconds. Do you think this is the kind of case the Supreme Court will take right away if it's petitioned, or are they going to wait for
other courts to rule on it. My instinct is that they will wait because it may be that all federal courts that they agree with this position. They still might take the issue then, but the need to do so it would be lowered. But it's more likely would be the kind of case for other circuits to say the
second circuit will come out the other way. And if that happens, then the justices have a circuit split, which is what they like to see before they take a case, because it means the case has had a chance to, as they say, percolate, meaning a chance for lots of different judges to weigh in. And that gives everybody a chance in the legal system to take positions and think it over, and in theory it produces a better judgment
by the time the Supreme Court gets to the issue. Well, thank you very much to Noah Feldman, Professor of Constitutional and International law at Harvard Law School and a Bloomberg View columnist. Coming up on Bloomberg Law, we're going to talk about diversity at law firms, the diversity of partners at law firms is frankly not very high, and Corporate America is concerned about it and trying to pressure law firms to promote more women and people of color into
partnership positions. If they're going to hire these firms to represent them, that's coming up straight ahead on Bloomberg Law. This is Bloomberg