A federal judge in Denver has upheld the 2008 federal warrantless wiretap law in a case against a refugee from Uzbekistan who is accused of conspiring with terrorists.
Senior U.S. District Judge John Kane ruled that a 2008 amendment to the Foreign Intelligence Surveillance Act allows agents to tap phone calls and e-mails without a specific warrant if it targets a foreigner living overseas.
His decision came in the 2012 case against defendant Jamshid Muhtorov of Aurora, who is charged with providing material support to a terrorist organization. The evidence against Muhtorov consists largely of e-mails and telephone calls with a representative of the Islamic Jihad Union.
Muhtorov is represented by the federal public defender’s office and the American Civil Liberties Union.
Warren “Rick” Williamson, one of Muhtorov’s attorneys, predicted that ultimately the issue of warrantless wiretaps will be decided on appeal. “We all know that at some juncture the big issue will have to be resolved by the Supreme Court,” Williamson said Friday. “This area of the law is evolving almost daily.”
Muhtorov can’t consider appealing Kane’s decision until after a trial if he is convicted, he said.
Muhtorov’s attorneys had sought to toss evidence collected through warrantless wiretaps against him claiming that the FISA Amendments Act violates the Fourth Amendment by permitting officials to collect international communications of U.S. residents in bulk, without individualized court review.
Prosecutors had acknowledged for the first time ever in a federal criminal case that the government used warrantless wiretaps in its investigation of the native of Uzbekistan.
Kane wrote in his decision that the belated notice was part of the Edward Snowden fallout. In making his decision, Kane noted that the government is susceptible to using FISA as an “end run” around wiretap laws.
He ruled that the government did not unconstitutionally apply FISA in collecting evidence against Muhtorov. While Muhtorov has a reasonable expectation of privacy in the content of his communications generally, those interests are at least somewhat diminished when transmitted to a third party over the Internet, Kane wrote.
“The government’s interest in using intelligence information to detect and prevent criminal acts of terrorism, and ultimately to punish their perpetrators, is a legitimate governmental interest against which individual FAA privacy intrusions must be weighed,” Kane wrote.
