By Casey Rawlings
DENVER, CO – Jamshid Muhtorov had his email searched without warrant by the US government under section 702 of the Foreign Intelligence Surveillance Act (FISA), and last week, Denver’s Circuit Court of Appeals held that it was lawful.
The court further ruled that the lengthy seven year delay prior to Muhtorov’s trial did not violate the Speedy Trial Act.
The ruling was part of United States v. Muhtorov, a challenge brought by the ACLU and the office of the Federal Public Defender of Colorado in a criminal case.
Muhtorov, who is Uzbek, first received notice from the government that he was being monitored under Section 702 in 2013, after Edward Snowden revealed the consequences of the National Security Agency’s mass surveillance practices.
Muhtorov was a prominent human rights defender in Uzbekistan, and came to the U.S. seeking political asylum after facing persecution by Uzbekistan’s ruling regime.
Shortly after Muhtorov arrived in the U.S. in 2007, the U.S. government began surveilling him, and in 2012, it charged him with attempting to provide material support to the Islamic Jihad Union in Uzbekistan.
For years, federal agents tracked Muhtorov’s activities by installing bugs in his home and listening to intimate details about his family life. His phone calls were recorded as well as countless electronic communications he had.
Prior to his trial, Muhtorov attempted to suppress evidence obtained from Section 702 and asked for disclosure of the government’s surveillance. However, his request was denied by the district court.
He further challenged the constitutionality of Section 702, claiming that such monitoring of his communications violated both the warrant and reasonableness requirements of the Fourth Amendment.
Section 702 enables the government to intercept, store, and search the international communication records of thousands of people, inducing people living in the US. While it retains the information, it searches them for information about people in the US.
Section 702 is a highly controversial statute due to the ways in which it enables the surveillance of the NSA. Countless warrantless surveillance of American’s international calls, emails, chats, and web-browsings are intercepted each year under this Section.
Judge Lucero argued in the dissent, and specified his many concerns about the Section. Lucero stated that Americans’ “do not lose their protected privacy interests when they communicate with foreigners.”
He further argued that the “vast scope” of the government’s surveillance under Section 702 and agents’ “minimally fettered” access to databases storing Americans’ communications “creates the potential for the evisceration of Fourth Amendment protections for U.S. persons who communicate with persons abroad.”
Patrick Toomey, senior staff attorney with the ACLU’s National Security Project, spoke about the gravity of the decision.
He stated, “we don’t give up bedrock Fourth Amendment protections when we communicate with family, friends, and colleagues abroad, contrary to the court’s ruling today. Under Section 702, the government for years has amassed our online messages, chats, and emails without a warrant, violating the constitutional rights of countless Americans, including Mr. Muhtorov.”
Toomey concluded by restating the threat posed by unchecked mass surveillance, noting, “mass surveillance threatens all of us. The FBI and NSA don’t have a free pass to seize and sift through our most sensitive communications, and we will keep fighting to ensure they can’t violate the Constitution.”