Supreme Court Amici Brief in Support of Mohamed Osman Mohamud with EFF, New America

This case concerns a regime of electronic surveillance unprecedented in our nation’s history and unlike anything this Court has countenanced in the past. Relying on Section 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1881a, the Government annually intercepts billions of international communications sent by hundreds of thousands of individuals, including Americans. It conducts this surveillance inside the United States with advisory approval of Article III judges, all without a warrant or anything resembling one.

This warrantless surveillance of Americans violates the Fourth Amendment, and the advisory role imposed on the Judiciary by Section 702 violates Article III.

The Ninth Circuit’s decision in this case disregarded these significant constitutional defects. Instead, the court invented a dangerous—and doctrinally unprecedented—exception to the warrant requirement. And it gave short shrift to the novel role Section 702 imposes on the Judiciary.

Section 702’s constitutional infirmities have affected millions of individuals, including countless Americans, over almost a decade of surveillance conducted under the statute. Accordingly, amici urge the Court to grant certiorari in order to resolve the significant constitutional issues presented by this case.