Petition — Jabara v. Webster

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

fhce SUP

Of ¥ i Ls rT)

aPk bk) 1983

6 . as.

ALEXANDS R L. STV

yaaa

reme Court, *$.

; IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

ABDEEN M. JABARA,

Petitioner,

WILLIAM H. WEBSTER, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

JOHN H.F. SHATTUCK

Counsel of Record

BURT NEUBORNE

MARK H. LYNCH

DAVID E. LANDAU

JERRY J. BERMAN

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

600 Pennsylvania Avenue, S.E.

Washington, D.C. 20003

(202) 544-1681

Counsel for Petitioner

QUESTIONS PRESENTED

l. Does the Fourth Amendment permit warrant-

less surveillance by a Federal agency of the

contents of an American citizen's private

electronic communications, simply because the

agency has the technical capability to monitor

the streams of unintelligible signals that

carry those communications?

ae Does subsection (e)(7) of the Privacy

Act, 5 U.S.C. § 552a(e)(7), permit a Federal

agency to maintain, as part of an "intelli-

gence" investigation unrelated to any unlawful

activity, records describing a person's

exercise of First Amendment rights?

PARTIES TO THE PROCEEDING

Petitioner is Abdeen M. Jabara.

Respondents are William H. Webster,

Director, Federal Bureau of Investigation;

Lt. Gen. Lincoln Faurer, Director, National

Security Agency; William French Smith, Attor-

ney General; L. Patrick Gray, former Acting

Director, Federal Bureau of Investigation;

Neil J. Welch, Special Agent, Federal Bureau

of Investigation; Winston Churchill, Special

Agent, Federal Bureau of Investigation; John

Doe and Richard Roe, unknown present or former

Special Agents, Federal Bureau of Investiga-

tion; and James Boe and William Poe, unknown

present or former agents or officials of the

National Security Agency.

Respondents Webster, Smith, and

Faurer are sued in their official capacities;

all other respondents are sued in their indi-

vidual and/or former offical capacities, ex-

cept for respondent Gray, who remains a defen-

dant in his individual capacity only.

(ii)

TABLE OF CONTENTS

Page

OPINIONS BELOW wccccccccccccccedtheccecses 6

JURISDICTION wcccccccccccces@sccsccececccs 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED Se Coen Bene, Ce 0 2 22 ae 6 4

STATEMENT OF THE CASE news ee 8-2 ee eet .@< @26@ 84:8. @ 5

REASONS FOR GRANTING THE WRIT ..seeeecesees 20

I. The Sixth Circuit's Holding

that the Fourth Amendment

Permits Warrantless Surveil-

lance of the Contents of An

American Citizen's Private

Electronic Communications Is

Squarely in Conflict with

Katz v. United States and

1€S PLOGENY cecccccccccccccsese 26

+ The Sixth Circuit's Construc-

tion of Subsection (e)(7) of

The Privacy Act Conflicts

With the Eleventh Circuit's

Construction of the Subsec-

tion and Undermines the

Aims of the Privacy Act As

SB WHOLS cocccscecsacevesssssess 26

CONCLUSION eee eeeeeeeeeeeeeeeeeeeeeeeeeee 48

(iii)

TABLE OF AUTHORITIES

Cases: Page

Albright v. United States, 631 F.2d 915

(D.C. Cif. 1980) eCoesesnesessesat, 44, 47

Arkansas v. Sanders, 442 U.S. 753

CEPT OL eveseccescoeseeseensseaeeveses 28, 29

Birnbaum v. United States, 588 F.2d 319

(2d «5 oe 1978) 6.6 2 6-24 8.18 8 6.8 6.8.0 2:22.02 6 a4

Camara v. Municipal Court, 387 U.S. 523

(1967) 2 8 88 2-6 e £39 8 2 6.8 8 0.8 2 6.8.6.6 62 2 6 8 2 2 80 34

Clarkson v. IRS, 678 F.2d 1368 24, 25, 37

(11th Cir. 1982) ...4+..38, 42, 45, 46, 47

Committee on Masonic Homes v. NLRB, 556

F.2d 214 (3d og 1974) a ew oe fe 2 oO a ey ee OF 44

Coolidge v. New Hampshire, 403 U.S. 443

(1971) o;©€. 8.5 6 0 £26 6 Co Oe Ore? £22.86 82 Ce 82 2 C2 2.e 34

Edwards v. California, 314 U.S. 160

(1941) *enreereneee#keer#ee#e*e###*#*e## ## # # # # # # #@ @# @#@ # #@ @ @ 36

FBI v. Abramson, 102 S. Ct. 2054 (1982) .. 44

Florida v. Brady, 406 So.2d 1093 (Fla.

1981), cert. granted, 50 U.S.L.W.

3924 (U.S. May 25, 1982)

(NO. 8121636) weccccccccseveecceseesee 32

Halkin v. Helms, 598 F.2d 1 (D.C. Cir.

1978) oe wp e*eeeeee#e##e#t##e#e###*#e#e#####e#e#ee## ee @# # @ 8

Hester v. United States, 265 U.S. 57

(1924) *enrieenrer#kee#e#kee##e#ee#e#t#e#ee##e#e#*e#e##e# # # # # # © @ 32

Katz v. United States, 389 U.S. 347 20, 26

(1967) er er eee ee yee ee. oe 30, ai» 32, 33

(iv)

Cases: Page

Lamont v. Department of Justice, 475

F. Supp. 761 (S.D.N.Y. 1979) “eee eeee 44

Oliver v. United States, 686 F.2d 356

(Sth Cir. 1982), cert. granted, 51

U.S.L.W. 3552 (U.S. Jan. 25, 1983)

Cs BaeUS) esa cccececcoescasticesccece Im

Olmstead v. United States, 277 U.S. 438

(1928) “eneree ew#eeeeeneeeeeetrteeeeeeee eee @ 31

Smith v. Maryland, 442 U.S. 735 (1979) ... 28

Rural Housing Alliance v. USDA, 498 F.2d

73 (D.C. Cit. 1974) oeeeweeeeeeneeeeeeee 43

Stanford v. Texas, 379 U.S. 476 (1965) ... 35

United States v. Chadwick, 433 U.S. 1

(1977) *“eereeeenrneeentreee #e#eeeeeee#ee#e#e#e#ee#*# 29

United States v. Dunn, 674 F.2d 1093 (5th

Cir.), petition for cert. filed, 51

U.S.L.W. 3260 (U.S. Oct. 15, 1982)

(NO. 82-508) weccccccccccccssccescccse 32

United States v. Knotts, 51 U.S.L.W 28, 30

Base (sO. BOS. 1, T9SR) ccvvcvssessve oe

United States v. United States District 26

Coere. 667 Uuh. 297 CUSTA) cesccosecdee aa

Walter v. United States, 447 U.S. 649

(1980) Se Oe Oeeeseeeevws@e ee’ eCeeVeveeo27oes8 @€ 8 60.808 2006 8 8 & 28

Zurcher v. Stanford Daily, 436 U.S. 547

(1978) *enereeeeeenteeeeereteeeeeeee#eeeee#ee#ee#ee#ee 35

(v)

Constitutional And Statutory

Authorities: Page

U.S. Const., Amend. I tteccoseese®y 25, 37, €2

.S. Const., Amend. Iv Soe eee eee reece se Passim

> U.8.C.. ¢ 5952(b) (7) coeccceccccccccah, 42, 47

> U.S.C. § 552a(e) (7) co eee eee eres sees s Passim

28 U.S.C. § 1254(1) PEVCKO Ob 64 ted b0 48 6 0 < 4

Office of Management and Budget

Privacy Act Guidelines,

40 Fed. Reg. 28,965 (1975) Coccccccccces 42

Supreme Court Rule 17.1(a) J ee ee ne |

Legislative Materials:

Subcomm. on Government Information «&

Individual Rights of the House

Comm. On Government Operations 5

Subcomm. on Administrative

Practice & Procedure of the

Senate Comm. on the Judiciary,

Freedom of Information Act and

Amendments of 1974 (Pub. L. No.

93-502) Source Book: Legisla-

tive History, Texts, and Other

Documents, 94th Cong., lst Sess.

(1975) (Joint Comm. Print) Gesecsese £6

(vi)

Legislative Materials: Page

Senate Comm. on Government Operations &

Subcomm. on Government Information

and Individual Rights of the House

Comm. on Government Operations,

Legislative History of the Privacy

Act of 1974, S. 3418 (Pub. L. No.

93-579): Source Book on Privacy,

94th Cong., 2d Sess. (1976) (Joint

Comm. Print) .ecccvceceddy 40 41, 43, 44

3 Senate Select Committee to Study

Governmental Operations with

Respect to Intelligence Activities,

Final Report, S. Rep. No. 755, 94th

Cong., 20 SESS. (1976) wecccccccccccsee ed

5 Intelligence Activities -- S. Res.

21: Hearings before the Senate

Select Comm. to Study Governmental

Operations with Respect to Intel-

ligence Activities, 94th Cong.,

Tet Sess. (1975) waeccovcsccccescecceeGs, F

Protecting Individual Privacy in Fed-

eral Gathering, Use, and Disclo-

sure of Information, S. Rep. No.

1183, 93d Cong., 2d Sess. (1974) ..40, 41

S. Rep. No. 813, 89th Cong., 1st

Sess. (1965) ee ee ee eee

Staff Analysis of House and Senate

Compromise Amendments to Federal

Privacy Act (1974) wcccccccccccccccccecdl

Attorney General's Memorandum on the

1974 Amendments to the Freedom of

Information Act (197464) wccccecrvssceseseS

(vii)

Page

Statement of President Ford on Imple-

mentation of Privacy Act of 1974

(Sept. 29, 1975) *oentieeeeene + @& @ © © © @ @ 45

Other Authorities:

Guidebook to the Freedom of Information

and Privacy Acts (R. Bouchard & J.

Franklin eds. 1980) *e*eereoeeseeee#e#ee#e#e#e#e#e##ee#e¢ 46

Hon. Griffin B. Bell, Electronic Surveil-

lance and the Free Society, 23

St. LOULS Usede V LEETS) eeeeceven 22

Note, Government Monitoring of Interna-

tional Electronic Communications:

National Security Agency Watch List

Survelllance and The Fourth Amend-

ment, 5! Cal. L. Rev. 429 (1978) .. 9

(viii)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

No. 82-

ABDEEN M. JABARA,

Petitioner,

WILLIAM H. WEBSTER, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Petitioner Abdeen M. Jabara respect-

fully prays that a writ of certiorari issue to

review the judgment of the United States Court

of Appeals for the Sixth Circuit entered in

this proceeding on October 21, 1982, reversing

the judgment of the United States District

Court for the Eastern District of Michigan

entered in this proceeding on June 13, 1979.

The district court, on motion for summary

judgment, had declared (1) that certain war-

rantless surveillance by the National Security

Agency of the contents of petitioner's private

overseas electronic communications violated

the Fourth Amendment; and (2) that the main-

tenance by the Federal Bureau of Investigation

of certain records describing how petitioner

has exercised his First Amendment rights vio-

lated subsection (e)(7) of the Privacy Act, 5

U.S.C. § 552a(e)(7). The court below vacated

the district court's order enjoining such con-

duct.

OPINIONS BELOW

The opinion of the court below an-

nouncing the judgment at issue is reported at

691 F.2d 272 (6th Cir. 1982), and appears in

the appendix hereto ("Pet. App.") at 90. The

unreported order of the court below denying

the petition for rehearing appears at Pet.

App. 104. The unreported dissent of Circuit

Judges Merritt and Jones from the denial of

rehearing en banc appears at Pet. App. 107.

The opinion of the district court is reported

at 476 F. Supp. 561 (E.D. Mich. 1979), and ap-

pears at Pet. App. 1. The district court's

unreported partial judgment appears at Pet.

App. 84.

JURISDICTION

The judgment :ought to be reviewed

by this petition was entered on October 21,

1982. Pet. App. 90. The order of the court

below denying petitioner's timely petition for

rehearing was entered on December 17, 1982.

Pet. App. 104. The order of the Sixth Circuit

denying rehearing en banc was initially

entered on December 17, 1982, and subsequently

re-entered on December 22, 1982, as amended to

include the dissent of Circuit Judge Merritt,

in which Circuit Judge Jones concurred. Pet.

App. 107. On March 8, 1983, Circuit Justice

O'Connor extended the time in which to file

this petition from March 16, 1983, to and in-

cluding April 16, 1983, the date on which this

petition is being filed. This Court's juris-

diction is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

U.S. Constitution, Amendment IV:

The right of the people

to be secure in their

persons, houses, papers,

and effects, against

unreasonable searches and

seizures, shall not be

violated, and no Warrants

Shall issue, but upon

probable cause, supported

by Oath or affirmation,

and particularly

describing the place to be

searched, and the persons

or things to be seized.

Privacy Act, subsection (e)(7), 5 U.S.C.

§ 552a(e) (7):

(e) Each agency that

maintains a system of

records shall --

* * *

(7) maintain no record

describing how any

individual exercises

rights guaranteed by the

First Amendment unless

expressly authorized by

Statute or by the

individual about whom the

record is maintained or

unless pertinent to and

within the scope of an

authorized law enforcement

activity[.]

STATEMENT OF THE CASE

Petitoner is a politically active

Michigan lawyer. | A second-generation

American born to parents of Lebanese origin,

petitioner founded and has served as president

of the Association of Arab-American University

Graduates.2 Since 1967, he has lectured

1 Jabara Aff. (July 18, 1973) 44 1-2.

Petitioner received his law degree from

Wayne State University Law School in 1966.

At all times relevant hereto, petitioner

has been a member in good standing of the

Bar of the State of Michigan. Id. 4 1.

2 Id. 4 2. See Supplemental Jabara Aff.

in Support of Discovery Motion (Dec. 12,

(Footnote continued. )

and published on issues relating to the Middle

East conflict.3 In the course of his

activities, petitioner has decried what he re-

gards as harassment of Arab students by the

FBI,4 and has urged Arabs living in the

United States "to mount legal challenges to

(Footnote continued. )

1974) ¥ 2. The organization is a non-

profit, tax-exempt corporation "organized

and operating to further the dissemination

of accurate and scientific knowledge about

the Middle East and improve the bonds

among Americans of Arab heritage and

between the Arab and American people."

Jabara Aff. (July 18, 1973) ¥ 2.

Petitioner has been active in the

Organization of Arab Students and the

Young Socialist Alliance. First Amended

Complaint ¥ 12.

3 Jabara Aff. (July 18, 1973) ¥ 2. Peti-

tioner is, among other things, co-editor

of The Arab World: From Nationalism to

Revolution (Medina U. Press, Ill. 1971),

and has served as editor of Free Pales-

tine, a periodical. Plaintiff*s Answers

to Defendants' First Interrogatories ¥ 1;

Jabara Aff. (July 18, 1973) 4 2. Some of

petitioner's lectures on the Middle East

Situation, and on United States policy in

the Middle East, are recounted in

Supplemental Jabara Aff., supra note 2,

q 4.

4 First Amended Complaint ¥ 16.

FBI investigations" targeting them. >

Beginning at least as early as 1967

and continuing with some interruptions until

1975, petitioner himself became a subject of

investigation by the FBI.® As part of its

investigation, the FBI requested that the NSA

Supply it with any information concerning

petitioner that might "come into" the NSA's

possession. / The NSA, without first ob-

5 476 F. Supp. 561, 574 (E.D. Mich.

1979), Pet. App. 48. See also First

Amended Complaint { 2; Supplemental Jabara

Aff., supra note 2, ¥ 3.

6 476 F. Supp. at 564, Pet. App. 3.

7 Answer to First Amended Complaint by

Defendants Levi, Kelley, Welch, and

Churchill 4 19. The FBI's investigatory

tactics also included physical surveil-

lance by informants and agents, inspection

of petitioner's bank records, warrantless

electronic surveillance, interviews of

third parties regarding petitioner, and

the maintenance and dissemination of in-

formation acquired during the investiga-

tion. 476 F. Supp. at 564, Pet. App. 6.

taining a warrant, intercepted and summarized

for the FBI a series of petitioner's private

overseas electronic communications. 8

8 476 F. Supp. at 577, Pet. App. 58; An-

swer to First Amended Complaint, supra

note 7, ¥ 17.

International electronic communications

channels are monitored by the NSA at the

request of the FBI, the CIA, the Depart-

ment of Defense, and other Federal agen-

cies. See 5 Intelligence Activities -- S.

Res. 21: Hearings Before the Senate

Select Comm. to Study Governmental Opera-

tions With Respect to Intelligence Activ-

ities, 94th Cong., Ist Sess. 9-12, 20

(1976) (statement of Lt. Gen. Lew Allen,

Jr., Director, NSA) ["5 Intelligence

Activities"); Halkin v. Helms, 255 F.2d 1,

q(D.C. Cir. 1578). The agency "picks up

all communications carried over a specific

link that it is monitoring," using a

technique that has been described as

"analogous to a vacuum cleaner." 3 Senate

Select Committee to Study Governmenta

Operations with Respect to Intelligence

Activities, Final Report, S. Rep. No. 7/55,

94th Conq., 2d Sess. /41 (1976). The

Signals that carry the electronic communi-

cations through such channels may be

reduced to intelligible form when the

NSA's computers are instructed to target

such key features as specified names or

words mentioned in a communication. See

Halkin v. Helms, 598 F.2d at 4 (describing

process). 8y Such means, particular com-

(Footnote continued, )

At no time during the seven years of

FBI investigation did any evidence emerge

"linking [petitioner] to the commission or

anticipated commission of any specific

crime."9 Moreover, no evidence was ever

(Footnote continued. )

munications, targeted for interception

from among the unintelligible signal

streams the NSA indiscriminately monitors,

are rendered available for human examina-

tion. See 5 Intelligence Activities,

Supra, at 19 (statement of Lt. Gen. Lew

Allen, Jr., Director, NSA). See generally

Note, Government Monitoring of Interna-

tional Electronic Communications: Na-

tional Security Agency Watch List Sur-

velllance and the Fourth Amendment, 51 S.

Cal. L. Rev. 429 (1978).

476 F. Supp. at 564, Pet. App. 4.

Defendants admitted that, with one

exception, the information they collected

on petitioner was not collected "pursuant

to a criminal investigation." Answer to

First Amended Complaint, supra note 7,

4 10. The FBI/NSA surveillance of peti-

tioner's overseas communications "was not

incidental to the investigation of non-

parties" -- that is, was not conducted in

the course of monitoring other individuals

Or organizations. 476 F. Supp. at 577,

Pet. App. 59. The district court stated

that "the record . . . does not disclose

any reason for the targeting and examina-

tion of these communications other than

(Footnote continued. )

produced "to establish that Jabara or the do-

mestic organization to which he belongs has

been implicated in any way with a foreign

agent or organization or acting in collabora-

tion with a foreign power."!9 pespite

the utter lack of such evidence, and despite

the lack of any evidence "implicat[ing] na-

national security,"!! the FBI has dis-

seminated information regarding petitioner --

including information received from the NSA --

to 17 government agencies, three foreign

governments, and other persons outside the

FBI.12

(Footnote continued.)

the fact that Jabara was a party to them."

Id., Pet. App. 60. See also id. at 579

n.12, Pet. App. 67 n.12.

10 476 F. Supp. at 579, Pet. App. 468.

11 476 F. Supp. at 574, Pet. App. 48.

This and other factors led the district

court to conclude that the FBI's investi-

gation may not have been "wholly prompted

by legitimate or good faith national se-

curity concerns." Id. at 574-75, Pet.

App. 48.

12 Id. at 565, Pet. App. 7; id. at 577,

Pet. App. 58.

w 4 «

On October 19, 1972, petitioner,

seeking declaratory and injunctive relief,

filed suit in the district court, alleging

that the investigatory tactics deployed

against him by FBI officials violated his

First, Fourth, Fifth, and Ninth Amendment

rights.'3 Petitioner subsequently

amended his complaint to allege that the FBI's

maintenance of records describing how he exer-

cised rights protected by the First Amendment

violated provisions of the Privacy Act,

5 U.S.C. § 552a.'4 Named as defendants

13 Complaint 44 9-12. NSA officials were

subsequently joined as defendants. Second

Amended Complaint 44 9-10.

14 Second Amended Complaint ¥ 58.

Petitioner also amended his complaint to

add claims for damages under 18 U.S.C. §

2520 and under the First, Fourth, Fifth,

and Ninth Amendments. First Amended

Complaint at p. 15. The district court

subsequently bifurcated the suit with

respect to the issues of liability and

damages. 476 F. Supp. at 565 n.1, Pet.

App. 10 n.1. Only the disposition of

petitioner's claim for declaratory and

(Footnote continued. )

were the Attorney General, the Director of the

FBI, the Director of the NSA, and several

named and unnamed agents and employees of the

FBI and Nsa.!5

Following five years of litigation

Over contested discovery matters, !® de-

fendants and plaintiffs filed cross-motions

for summary judgment.!7 In a judgment

entered on June 13, 1979, the district court

held that the warrantless examination of the

contents of petitioner's private overseas com-

(Footnote continued. )

injunctive relief is before this Court.

See id.

15 Complaint 4 3; First Amended Complaint

4% 3-9; Second Amended Complaint 4 2-11.

16 See Jabara v. Kelley, 62 F.R.D. 424

(—E.D. Mich. 1974); Siac v. Kelley, Civ.

No. 39065 (E.D. Mich. June 27, )

(unpublished opinion); Jabara v. Kelley,

75 F.R.D. 475 (E.D. Micn. 1977).

17 See Joint Appendix on Appeal to Sixth

Circuit at 78-82. Defendants also sought

dismissal of the First and Second Amended

Complaints.

munications violated the Fourth Amend-

ment.!'8 Stressing that no evidence had

been produced to establish that petitioner was

a foreign agent or was acting in collaboration

with a foreign power, the district court con-

cluded that the Fourth Amendment violation was

"clear."19

476 F. Supp. at 578-79, Pet. App. 65-

68. Because defendants had admitted "the

threshold and ultimate issue" -- that the

NSA had intercepted petitioner's overseas

communications, and had targeted them for

transmission to and examination by the FBI

-- the district court concluded that

"resort need not be made to privileged

material to establish a violation of

[Jabara's] constitutional rights." 476 F.

Supp. at 578, Pet. App. 63.

476 F. Supp. at 579, Pet. App. 68

(footnote omitted). The district court

enjoined the Director of the NSA "from us-

ing plaintiff's name or other personal

identifier as a means for selecting for-

eign cable communications for analysis,

summary, examination or dissemination

without first obtaining a judicial warrant

pursuant to procedures provided for by

applicable law." Partial Judgment qj 5,

Pet. App. 86-87. The court further en-

joined “[aJll remaining defendants not em-

ployed by the [NSA] .. . from requesting

(Footnote continued. )

The district court also held that

the FBI's maintenance of records describing

petitioner's exercise of First Amendment

rights violated subsection (e)(7) of the Pri-

vacy Act, 5 U.S.C. § 552a(e) (7), on the ground

that the “intelligence” investigation to which

the FBI's records were said to relate was not

focused on any "Specific past, present or fu-

ture criminal acts."29 Hence, the court

ruled, the maintenance of such records could

not be justified under subsection (e)(7) as

being “pertinent to and within the scope of an

(Footnote continued. )

the [NSA] to use plaintiff's name or other

personal identifier as a means for select-

ing copies of plaintiff's foreign communi-

cations or communications to plaintiff

from a foreign origin for analysis,

review, Summary or dissemination without

first obtaining a judicial warrant pur-

Suant to procedures provided by applicable

law." Id.

20 476 F. Supp. at 581, Pet. App. 77.

authorized law enforcement activity."2!

On appeal, the Sixth Circuit held

that the district court had erred in granting

petitioner's motion for summary judgment on

both the Fourth Amendment and Privacy Act

issues.22 On the Fourth Amendment is-

sue, the court ruled that no warrant was re-

quired for the NSA's general monitoring of the

channels that carried petitioner's private

communications,23 and therefore that no

21 Id. The district court enjoined

defendants and their successors in office

"from recording, maintaining, using or

disseminating information about the

Plaintiff's political beliefs,

communications, speeches, writings,

associations or activities, both public or

private, which do not relate to specific

Criminal acts." Partial Judgment q¥ 9,

Pet. App. 88-89.

22 The district court on March 11, 1980,

had denied defendants' motion for

reconsideration. Pet. App. 83A.

warrant was required for the NSA to select,

reduce to intelligible form, and examine peti-

tioner's private communications carried over

those channels.24 Analogizing the unin-

telligible electronic signals scanned by the

NSA to papers lawfully seized by an arson in-

vestigator at the scene of a fire under the

"plain view" exception to the warrant require-

ment,25 the Sixth Circuit ruled that the

warrantless interception and examination of

the contents of petitioner's communications,

and their dissemination to the FBI, could not

violate the Fourth Amendment. 26

Petitioner argued that, whatever the

propriety of warrantless NSA monitoring of the

25 Id. at 277, Pet. App. 97, citing United

States v. Gargotto, 476 F.2d 1009 (6th

Cir. 1973), cert. denied, 421 U.S. 987

(1975).

26 691 F.2d at 278-79, Pet. App.100-01.

streams of unintelligible signals that carried

his electronic communications, his Fourth

Amendment rights were violated when the NSA

targeted his private communications for

interception, and reduced the signals that

carried those communications to intelligible

form.27 The court below acknowledged

Brief for Plaintiff-Appellee 20-21.

Petitioner noted that before the signals

that carried his messages were reduced to

intelligible form, his communications were

"not open to scrutiny by either an ‘in-

truding eye' or an ‘uninvited ear.' Katz

v. United States, 389 U.S. 347, 352

(1967)." Id. at 21. In support of this

argument, petitioner cited Walter v. Uni-

ted States, 447 U.S. 649 (1980), which in-

volved the warrantless opening of film

boxes in the FBI's possession, and the

subsequent viewing of the films by the

FBI. Plaintiff-Appellee's List of Cita-

tions Updating Brief at 2. As petitioner

noted, this Court held in Walter that

"(t]he fact that FBI agentS were lawfully

in possession of the boxes of film did not

give them authority to search their con-

tents." 447 U.S. at 654.

that petitioner had "an actual (subjective)

expectation of privacy when he sent [his] tel-

egraphic messages overseas,"28 but sim-

ply denied that any illegal search and seizure

occurred when his messages were selected for

interception and reduced to intelligible

form. 29

The Sixth Circuit also held that the

district court had incorrectly construed sub-

section (e)(7) of the Privacy Act. Rejecting

the district court's construction of the sub-

section's "law enforcement activity" exemption

as "too narrow,"39 the court below held

without explanation that the exemption permits

the FBI to maintain records relating to an in-

dividual's exercise of First Amendment rights

28 691 F.2d at 278, Pet. App. 100

(emphasis added).

29 Id.

30 691 F.2d at 280, Pet. App. 103.

even if incident to an “intelligence investi-

gation" unrelated to any unlawful activi-

ty.31 The court remanded the cause to

the district court to apply the "correct legal

Standard, "32

On December 17, 1982, the court be-

low denied rehearing.33 Rehearing en

banc was denied over the dissent of Circuit

Judges Merritt and Jones, who stated their

view that petitioner's Fourth Amendment rights

"were probably violated" by the FBI/NSA sur-

veillance, and that “the issue is of suffi-

cient importance to require a hearing by the

full Court."34

31 at 279-80, Pet. App. 102.

id.

32 Id. at 280, Pet. App. 103.

33 Pet. App. 104.

34 Pet. App. 107.

- 30 «

REASONS FOR GRANTING THE WRIT

1. The judgment below squarely con-

flicts with this Court's holding in Katz v.

United States, 389 U.S. 347 (1967), that war-

rantless government surveillance of a person's

private communications violates the Fourth

Amendment even where no "physical intrusion

into any given enclosure" is involved. Id. at

353. The judgment below mocks that holding by

allowing a person's private electronic commu-

nications to be intercepted and examined with-

Out a warrant simply because the government

has the technical capability to monitor the

unintelligible signal streams that carry those

communications. But to hold that a person's

expectations of privacy in his communications

are thus to be measured by the government's

capacity to defeat them by means of advanced

technology is to obliterate the fundamental

distinction between public and private that

alone renders the Fourth Amendment's protec-

tions meaningful.

The court below confused the chan-

nels through which petitioner's communications

were sent with the contents of the communica-

tions themselves -- an error of constitutional

magnitude. Just as the daily collection of

the mail by the United States Postal Service

does not entitle any government agency, with-

Out a warrant, to open and read the sealed en-

velopes thus collected, 35 so the moni-

toring of undifferentiated streams of signals

carrying private electronic communications

does not entitle government agencies to inter-

cept and examine those communications without

35. See, e.g., Birnbaum v. United States,

588 F. 319, 324 (2d Cir. 1978), citin

Ex parte Jackson, 96 U.S. 727, 733 ( ).

a warrant. Without a warrant, a government

agency is no more free to intercept and exam-

ine the contents of a person's private elec-

tronic communications than it is to open and

read his mail or to wiretap his telephone.

The sweep of the judgment challenged

herein makes plenary review by this Court es-

pecially critical. On the analysis of the

court below, it is immaterial whether a person

Claiming illegal surveillance of his private

overseas communications is a foreign agent or

acting in collaboration with a foreign power,

or whether national security is implica-

ted. 36 Indeed, under the court's rea-

36 See Supra page 10. Thus, this case

presents no occasion for this Court to

consider whether warrantless targeting and

interception of an individual's private

overseas communications is permissible

where the individual is a foreign agent or

acting in collaboration with a foreign

power, Or where national security is

implicated. Cf. Hon. Griffin B. Bell,

Electronic Surveillance and the Free

Society, 23 St. Louis U.L.J. 1, 4 (1979)

(Footnote continued. )

soning, it is immaterial whether the person's

electronic communications are international or

purely domestic. For according to the court

below, it is the fact that a government agency

has the technical capability to monitor the

channels through which the unintelligible sig-

nals carrying a person's communications are

sent that renders lawful the warrantless in-

terception and examination of particular com-

munications carried over those channels. A

more frightening and far-reaching repudiation

of Katz and its progeny can scarcely be imag-

ined. Review on this issue should therefore

be granted.

2. The court below also erred in

concluding that Congress, when it enacted the

"law enforcement activity" exemption to sub-

(Footnote continued. )

(noting "the need to do away with all-

purpose incantations about national secu-

rity").

= 22 @

section (e)(7) of the Privacy Act, intended to

permit the FBI to maintain, as part of an "in-

telligence" investigation unrelated to any un-

lawful activity, records describing an indi-

vidual's exercise of his First Amendment

rights. The legislative history of the Pri-

vacy Act and of the provision here at issue,

the interpretation of that provision by the

D.C. Circuit in Albright v. United States,

631 F.2d 915 (D.C. Cir. 1980), and the

Attorney General's and contemporaneous

judicial interpretation of parallel language

in the Freedom of Information Act, 5 U.S.C.

§ 552(b)(7), render untenable the Sixth

Circuit's construction. Moreover, the Sixth

Circuit's construction of subsection (e)(7)'s

"law enforcement activity" exemption squarely

conflicts with the Eleventh Circuit's

construction in Clarkson v. IRS, 678 F.2d

1368, 1375 (11th Cir. 1982). Finding the

"balance struck by the [district] court in

o» 9 «

Jabara .. . appropriate," the Eleventh Cir-

Cuit held that any investigation by the Inter-

nal Revenue Service, pursuant to which First

Amendment records are maintained under subsec-

tion (e)(7)'s “law enforcement activity" ex-

emption, must be related to some past, pres-

sent, Or anticipated statutory violation. Id.

Because the Sixth Circuit's con-

struction of subsection (e)(7)'s “law enforce-

ment activity" exemption would defeat the

purposes of the subsection and of the Privacy

Act as a whole; because of the widespread

application of subsection (e)(7) and its

direct bearing on the exercise of fragile

First Amendment freedoms; and because the

Sixth Circuit "has rendered a decision in

conflict with the decision of another federal

court of appeals on the same matter,” Supreme

Court Rule 17.1(a), the proper construction of

the provision is an issue that warrants

plenary review by this Court.

= a

The Sixth Circuit's Holding that the

Fourth Amendment Permits Warrantless

Surveillance of The Contents of An

American Citizen's Private Electron-

ic Communications Is Squarely in

Conflict with Katz v. United States

and Its Progeny

Although, as the court below ob-

served, the monitoring of petitioner's mes-

sages involved "sophisticated, high-technology

methods and equipment," 691 F.2d at 278, Pet.

App. 99, the applicable constitutional princi-

ple could not be more old-fashioned: "([T]he

broad and unsuspected governmental incursions

into conversational privacy which electronic

surveillence entails necessitate the applica-

tion of Fourth Amendment safeguards." United

States v. United States District Court, 407

U.S. 297, 313 (1972) (footnote omitted). See

Katz v. United States, 389 1).S. 347, 351-52

(1967). Yet just those safeguards were sac-

rificed by the court below in the name of the

ajivanced technology employed in this case,

«= 27 «

The court below incorrectly supposed

that the fact of the NSA's monitoring of the

channels through which petitioner's communica-

tions were sent rendered unreasonable any expvec-

tation he had that the actual contents of those

communications would remain private. Thus, even

though the court acknowledged that petitioner had

"an actual (subjective) expectation of privacy

when he sent [his] . . . messages overseas," 691

F.2d at 278, Pet. App. 100 (emphasis added), the

court nevertheless concluded that no constitu-

tional injury occurred when the actual contents

of his private communications were intercepted

and examined without a warrant.

But it was precisely at the moment of

such interception and examination that peti-

tioner's “reasonable expectation of privacy" in

his electronic communications was invaded. Until

that moment, the contents of his messages were

not open to scrutiny by either an “intruding

—.

eye" or an "uninvited ear." Katz, 389 U.S. at

352. Cf. Been v. Maryland, 442 U.S. 735, 743

(1979) (distinguishing between privacy expec-

tation as to the telephone number a person

dials, and as to "the contents of his conver-

Sation") (emphasis in oriqinal). And the in-

trusion that occurred resulted not from any

mere augmentation of "the sensory faculties

bestowed upon [the defendants] at birth,"

United States v. Knotts, 51 U.S.L.W. 4232,

4234 (U.S. Mar. 1, 1983), but from the techno-

logical transformation of the electronic sig-

nals carrying petitioner's private communica-

tions -- signals otherwise unintelligible by

human beings, no matter how augmented their

natural faculties.

The act of reducing petitioner's

communications to intelligible form parallels

the opening of the boxes of film in Walter v.

United States, 447 U.S. 649 (1980), the open-

ing of the luggage in Arkansas v. Sanders, 442

o 39 «

U.S. 753 (1979), and the opening of the foot-

locker in United States v. Chadwick, 433 U.S.

1 (1977). The fact that the boxes of film in

Walter, the luggage in Sanders, and the foot-

locker in Chadwick were lawfully within the

government's possession at the time did not

relieve the government of its obligation to

secure a warrant before examining the contents

of those containers.

So, too, the fact that streams of

unintelligible electronic signals might law-

fully be monitored without a warrant -- a

point petitioner does not concede -- cannot

relieve the government of the obligation to

secure a warrant before intercepting and exam-

ining the contents cf the communications those

Signals carry. The Fourth Amendment "safe-

guard[s) individuals from unreasonable govern-

mental invasions of legitimate privacy inter-

ests." Chadwick, 433 U.S. at 11. Those

interests are rendered no less legitimate, nor

= 30 «

the governmental invasions of such interests

any more reasonable, simply because electronic

communications are involved. See Katz, 389

U.S. at 352; United States v. United States

District Court, 407 U.S. at 312-13.

To answer that intercepting and re-

ducing otherwise unintelligible signals to in-

telligible form is nothing more than “scienti-

fic enhancement" of natural human faculties,

compare Knotts, 51 U.S.L.W. at 4235, would be

to negate the very concept of an "intrusion"

-- reasonable or otherwise.38 It was

precisely so frightening a prospect that this

38 In Knotts, by contrast, this Court

stressed that "there is no indication that

the beeper was used in any way to reveal

information as to the movement of the drum

within the cabin, or in any way that would

not have been visible to the naked eye

from outside the cabin." 51 U.S.L.W. at

4235. The “scientific enhancement"

(Footnote continued. )

= 31 «

court squarely foreclosed in Katz, holding

that the Fourth Amendment's reach "cannot turn

upon the presence or absence of a physical in-

trusion into any given enclosure." 389 U.S.

at 353. That the “intrusion" in this case may

have involved plucking messages from airwave

channels can make no constitutional differ-

ence. The “unjustifiable intrusion

+ « « upon the privacy of the individual,"

Olmstead v. United States, 277 U.S. 438, 478

(1928) (Brandeis, J., dissenting), occurred

(Footnote continued.)

afforded by the beeper in Knotts merely

enabled the police to keep track of a mov-

ing car after its driver had resorted to

"evasive maneuvers." Id. at 4233.

No invasion of privacy was therefore in-

volved; no expectation of privacy was de-

feated. This Court stressed that “scien-

tific enhancement of this sort raises no

constitutional issues which visual sur-

veillance would not also raise." Id. at

4235 (emphasis added). See also id. at

4236 (Stevens, J., joined by Brennan &

Marshall, JJ., concurring in judg-

ment).

o 329 «

when the contents of petitioner's messages

were rendered intelligible.

Apparently regarding petitioner's

communications as being, in effect, within

"earshot" of anyone who can “hear" the signals

that carry them, the court below treated peti-

tionerc's communications as being entitled to

no greater Fourth Amendment protection than

"conversations in the open." Katz, 389 U.S.

at 361 (Harlan, J., concurring). But it was

impossible for anyone to “hear"™ petitioner's

communications until the signals that carried

them were intercepted and rendered intelligi-

ble by the NSA.39 And contrary to

39 Compare Hester v. United States,

1.5. 57 (1924); Florida ¥. Brady, 406

So.2d 1093 (Fla. 1981), cert. granted, 50

U.S.L.W. 3934 (U.S. May 25, 1982) (No.

81-1636); Oliver v. United States, 686

F.2d 356 (Sth Cir. 1982), cert. granted,

51 U.S.L.W. 3552 (J.S. Jan 25, 135 (No.

82-15); United States v. Dunn, 674 F.2d

1093 (5th Cir.), petition tor cert. filed,

51 U.S.U.W. 3260 oF: ~ Oct. 5, 1950) (NO.

82-508). See also Knotts, 51 U.S.L.W. at

4235-35 (Rlackmun, J., jJOined by Brennan,

Marshall & Stevens, JJ., concurring in

judgnent).

= 33 -

another metaphor misapplied by the court be-

low, the electronic communications transmitted

by petitioner were no more in “plain view"

when the signals that carried them were moni-

tored by the NSA than was the film in the box-

es in Walter when seized by the police. 40

The judgment below rests on no nar-

row exception to generally applicable Fourth

Amendment protections. This case does not in-

volve any considerations peculiar to surveil-

lance of international, as distinct from

purely domestic, communications. Nor is there

any claim of exigency here that could justify

waiving the warrant requirement. Compare,

40 See supra page 16. If petitioner's

messages had been intelligible when moni-

tored, the constitutional injury would

indeed have occurred fully at that point;

in such circumstances, the monitoring

itself would have constituted a warrant-

less wiretap, violating petitioner's

reasonable assumption that the messages he

has transmitted “will not be broadcast to

the world." Katz, 389 U.S. at 352.

e.g., Coolidge v. New Hampshire, 403 U.S. 443,

459-64 (1971); Camara v. Municipal Court, 387

U.S. 523, 539 (1967). Grounded, instead, in

the premise that the warrant requirement sim-

ply does not apply whenever sophisticated

technology enables the government to "“per-

ceive" otherwise private communications, the

judgment below baldly repudiates the teachings

of Katz and its progeny.

Should the judgment below escape this

Court's plenary review, government officials

would have a green light to ignore Katz -- not

simply with respect to surveillance of over-

seas communications, but with respect to sur-

veillance of domestic communications as well.

At its narrowest, the judgment below stands

for the unacceptable proposition that the

Fourth Amendment is inapplicable to the inter-

ception of overseas communications so long as

the NSA supplies the tools of such surveil-

= 35 «

lance. Taken to its logical conclusion, the

judament below embodies the view that the

Fourth Amendment can no longer shield a per-

son's private communications from surveillance

so long as the means employed by the govern-

ment to intercept and examine such communica-

tions are sufficiently sophisticated.

The resulting chill on private ex-

pression would be incalculable.4! wWith-

out any warrant requirement to limit the gov-

= —— +=

41 specially where, as here, "First

Amendment interests would be endangered by

a search," "the courts [must] apply the

warrant requirements with particular exac-

titude." Zurcher v. Stanford Daily, 436

U.S. 547, 565 (1978). See also Stanford

v. Texas, 379 U.S. 476, 482-85 (1965);

United States v. United States District

Court, 407 U.S. 297, 313-14 (1972). The

possibilities of “abuse,” Zurcher, 436

U.S. at 566, inherent in such “dragnet

type .. . practices" as those employed

here, Knotts, 51 U.S.L.W. at 4235, cannot

be overstated.

ernment's ability to transforin the private

into the public at will, the Fourth Amend-

ment's protections themselves would quickly

lose all meaning. The rule announced by the

court below would thus render the Fourth

Amendment no more than "a promise to the ear

to be broken to the hope, a teasing illusion

like a munificent bequest in a pauper's will."

Edwards v. California, 314 U.S. 160, 186

(1941) (Jackson, J., concurring). Neither the

Fourth Amendment nor this Court's precedents

Can countenance any such result. Accordingly,

review on this issue should be granted.

Il.

The Sixth Circuit's Construction

of Subsection (e)(7) of the Privacy

Act Conflicts With the Eleventh

Circuit's Construction of the

Subsection and Undermines the Aims

of the Privacy Act as a Whole.

Wholly apart from its judament with

respect to the Fourth Amendment issue, the

o 37 «

court below erred in holding that subsection

(e)(7) of the Privacy Act, 5 U.S.C. § 552a-

(e)(7), permits the FBI to maintain records

describing an individual's exercise of First

Amendment rights as part of an "intelligence"

investigation unrelated to any unlawful

activity. This construction of the subsection

is untenable, squarely conflicts with the

construction given by the Eleventh Circuit in

Clarkson v. IRS, 678 F.2d 1368 (11th Cir.

1982), and undermines the fundamental aims of

the Privacy Act as a whole,42

42 The record below established that the

FBI's maintenance of records relating to

petitioner's political activities did not

relate to investigation of any unlawful

conduct. See 476 F. Supp. at 581, Pet.

App. 78-79. Thus, the FBI's maintenance

of records describing petitioner's First

Amendment activities could be justified,

if at all, only by construing the "law

enforcement activity" exemption of subsec-

tion (e)(7) to include "intelligence"

investigations unrelated to any unlawful

activity. Petitioner does not contend

that the "law enforcement activity" ex-

(Footnote continued.)

The legislative history of subsection

(e)(7) establishes that the provision was in-

tended to preclude agencies from maintaining

records of First Amendment activities in con-

nection with "intelligence" investigations,

where such investigations do not focus on spe-

cific unlawful activity. Thus, Rep. Moorhead,

presenting H.R. 16373 to the House sitting as

a Committee of the Whole, explained that the

bill would permit the government to maintain

records on political activists as part of

"(lj awful criminal investigations," but not

(Footnote continued, )

emption necessarily requires an investiga-

tive focus on specific criminal activity;

nor did the Eleventh Circuit in Clarkson

understand the district court in this case

to have imposed such a requirement in

every situation. See 678 F.2d at 1375.

on those simply “exercising first amendment

rights."43 And although Rep. Ichord, in

discussing on the House floor the specific

"law enforcement activity" exemption ultimate-

ly enacted in subsection (e)(7), see Source

Book on Privacy, Supra note 43, at 901,

emphasized that such activity might include

"legitimate national or internal security

intelligence and investigations," id. at 902,

Such investigations were understood by

Congress, in this context, not to entail "col-

lection of protected information . . . about

43 Senate Comm. on Government Opera-

tions & Subcomm. on Government Information

and Individual Rights of the House Comm.

on Government Operations, Legislative

History of the Privacy Act =? TO74, 3.

3416 (bab L. No. eEEYEDE Source Book on

Privacy, 94th Cong., 2d Sess. 885 (19/76)

(Joint Comm. Print) ["Source Book on

Privacy"].

law-abiding Americans." Id. at 210.44 The

Privacy Act as a whole was "designed to prevent

Reprinting Protecting Individual Pri-

vacy in Federal Gathering, Use, and Disclo-

sure of Information, S. Rep. No. 1183, 93d

Cong., 2d Sess. 57 (1974) (accompanying S.

3418). See Source Book on Privacy, supra

note 43, at 903 (Rep. Ichord acknowledging

that "no file would be kept of persons who

are merely exercising their constitutional

rights"). Indeed, the "law enforcement ac-

tivity" exemption was repeatedly referred to

on the House floor as the "criminal exemp-

tion," see id. at 885-86 (emphasis added),

Suggesting that some in Congress deemed the

exemption to require an investigative focus

on specific criminal misconduct, and not,

alternatively, on conduct that could give

rise simply to civil or administrative sanc-

tions. To be sure, not every "intelligence"

investigation focuses on unlawful activity;

but only those that do may come within the

rubric of “law enforcement activity" within

the meaning of subsection (e)(7).

Although S. 3418, as reported, did not

include the "law enforcement activity" exemp-

tion, it did include a much broader exemption

-- one that would have allowed the mainten-

ance of records describing the political ac-

tivities of individuals if the agency head

determined that doing so was required for

"the administration of a statute." See

Source Book on Privacy, Supra note 43, at 988

(Footnote continued. )

the kind of illegal, unwise, over-broad, in-

vestigation and record surveillance of law-

abiding citizens which [had] resulted in re-

cent years from actions of some over-zealous

investigators, [and] from the curiosity of

some government administrators." Source Book

on Privacy, supra note 43, at 867 (statement

of Sen. Ervin, sponsor of S. 3418). By enact-

ing the "law enforcement activity" exemption,

(Footnote continued.)

(Staff Analysis of House and Senate Com-

promise Amendments to Federal Privacy

Act). But the Senate bill's exemption,

broader than the exemption ultimately

enacted, would itself clearly have pre-

cluded the maintenance of records on an

individual's exercise of First Amendment

rights where no specific unlawful activity

was involved. Source Book on Privacy,

Supra note 43, at 209-10, S. Rep. No.

1183, Supra, at 56-57. Not only did the

compromise bill narrow the exemption; it

also broadened the subsection's protection

of First Amendment rights. See Source

Book on Privacy, supra note 43, at 988

(Staff Analysis of House and Senate Com-

promise Amendments to Federal Privacy

Act).

- 42 -

"Congress did not intend to dilute the guaran-

tees of the First Amendment by authorizing the

maintenance of files on ‘persons who are mere-

ly exercising their constitutional rights.'"

Clarkson v. IRS, 678 F.2d at 1374.49

The view that the "law enforcement ac-

tivity" exemption requires investigative focus

on specific unlawful activity is buttressed by

the common understanding of parallel language

in subsection (b)(7) of the Freedom of Infor-

mation Act (FOIA), 5 U.S.C. § 552(5)(7) ("Ex-

emption 7"), exempting from disclosure under

the FOIA certain “investigatory files compiled

for law enforcement purposes." As Attorney

General Levi explained, records of general

information-gathering for monitoring purposes

are not for “law enforcement purposes" under

45 Quoting Office of Management and Bud-

get, Privacy Act Guidelines, 40 Fed. Reg.

28,965 (1975) (quoting 120 Cong. Rec. H.

19,892 (daily ef Nov. 20, 1974) and H10,

952 (daily ed. Nov. 21, 1974)).

-43-

Exemption 7 "except where the purpose for

which the records are held and used by the

agency becomes substantially violation-orient-

ed."46 This view accords with contem-

poraneous judicial interpretations of the ex-

emption as requiring a showing that the inves-

tigatory files "were compiled for adjudicative

or enforcement purposes." See, e.g., Rural

Housing Alliance v. USDA, 498 F.2d 73, 80

(D.C. Cir. 1974) (per Wilkey, J.) (emphasis

in original), reprinted in Source Book on

46 Memorandum On The 1974 Amendments To

Freedom of Information Act (1975) (empha-

Sis added), reprinted in Subcomm. on Gov-

ernment Information & Individual Rights of

the House Comm. on Government Operations &

Subcomm. on Administrative Practice & Pro-

cedure of Senate Comm. on the Judiciary,

Freedom of Information Act and Amendments

of 1974 (Pub. L. No. 93-502) Source Book:

Legislative History, Texts, and Other

Documents, 94th Cong., lst Sess. 516

(1975) (Joint Comm. Print).

» @4 -

Privacy, supra note 43, at 1430, 1436.47

A "violation-oriented" construction of

subsection (e)(7), unlike the Sixth Circuit's

construction, also finds support in the inter-

pretation given the provision by the D.C.

Circuit in Albright v. United States, 631 F.2d

915 (D.C. Cir. 1980). There the D.C. Circuit

confirmed that Congress intended a broad con-

struction of the subsection's prohibition on

maintaining records of First Amendment activi-

ties and a narrow construction of the prohi-

bition's exemptions. Id. at 918-20 & n.5.

47 See also Lamont v. Department of Jus-

tice, 475 F. Supp. 761, 774-75 (S.D.N.Y.

1979) (per Weinfeld, J.) ("generalized

monitoring and information gathering...

are not related to the [FBI's] law en-

forcement duties") (citing subsection

(e)(7) and Exemption 7) (discussing period

of surveillance of plaintiff when evidence

suggested no illegal activity); Committee

on Masonic Homes v. NLRB, 556 F.2d 214,

219 (3d Cir. 1977) (files compiled for

"law enforcement purposes" within meaning

of Exemption 7 "'‘'are the files prepared

(Footnote continued.)

- 45 -

Such an understanding of subsection (e)(7) ac-

cords with the Privacy Act's broader mission

of “provid[ing] special safeguards whenever

the rights of citizens to free speech and ex-

pression are involved." Source Book on Pri-

vacy, supra note 43, at 1002 (Statement by

President Ford on Implementation of Privacy

Act of 1974) (Sept. 29, 1975) (emphasis

added).

As construed by the court below,

subsection (e)(7)'sS exemption for records

maintained pursuant to “law enforcement acti-

vity" would entirely swallow the provision's

prohibition on the maintenance of records for

(Footnote continued.)

by Government agencies to prosecute law

violators'" (quoting S. Rep. No. 813, 89th

Cong., lst Sess. 9 11965)). Cf. FBI v.

Abramson, 102 S. Ct. 2054, 2060 (1982)

(name check summaries developed by the FBI

pursuant to White House request for infor-

mation about certain public personalities

"were not compiled for law enforcement

purposes" within meaning of Exemption 7).

purely political purposes. For precisely that

reason, the Eleventh Circuit in Clarkson v.

IRS, 678 F.2d 1368 (11th Cir. 1982), construed

subsection (2)(7) much as the district court

did in this case -- to require at least some

violation-oriented investigative focus before

the IRS might maintain records of First Amend-

ment activities under the subsection's "law

enforcement activity" exemption.48 unless

48 In Clarkson, the Eleventh Circuit held

that subsection (e)(7) was violated "to

the extent that the IRS has engaged in the

practice of collecting protected informa-

tion [about plaintiff's activities], un-

connected to any investigation of past,

present or anticipated violations of the

Statutes which it is authorized to en-

force." 678 F.2d at 1375. The court

pointedly noted that the "law enforcement

activity" exemption had been criticized as

inviting misuse, contrary to the intent of

Congress, to "'open[ ] a loophole that

threatens to swallow the rule,' and ‘may

well perpetrate those fishing expeditions'

that subsection (e)(7) is designed to

preclude.'" Id. at 1374 n.9, quoting

Guidebook to the Freedom of Information

and Privacy Acts 46, 74-75 n.70 (R.

Bouchard & J. Franklin eds. 1980).

anchored to a requirement that any “intel-

ligence" investigation constituting “law

enforcement activity" be focused on specific

unlawful activity, the subsection's general

protection against Big Brother surveillance of

entirely lawful political activity would soon

be eviscerated.

Because the Sixth Circuit's interpre-

tation of subsection (e)(7) plainly contra-

dicts the intent of Congress, the interpreta-

tion of the subsection by the D.C. Circuit in

Albright, and the contemporaneous construction

of parallel language in the FOIA by the Attor-

ney General and by the courts; and because the

Sixth Circuit's construction of the “law en-

forcement activity" exemption conflicts

squarely with the Eleventh Circuit's construc-

tion in Clarkson, plenary review on this

issue, as well as on the Fourth Amendment

issue, is warranted.

- 48 -

CONCLUSION

For the foregoing reasons, petitioner

respectfully prays that the instant petition

be granted.

Respectfully submitted,

JOHN H.F. SHATTUCK

Counsel of Record

BURT NEUBORNE

MARK H. LYNCH

DAVID E. LANDAU

JERRY J. BERMAN

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

600 Pennsylvania Avenue, S.E.

Washington, D.C. 20003

(202) 544-1681

Counsel for Petitioner”

April 16, 1983.

* Petitioner acknowledges the assistance of

David H. Remes of Kaye, Scholer, Fierman,

Hays & Handler, and Lucinda Starrett, a

Student at the University of Pennsylvania

School of Law, in the preparation of this

petition.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ABDEEN M. JABARA,

Plaintiff,

Vv. Civil No.

39065

CLARENCE M. KELLEY,

ET AL.,

Defendants.

MEMORANDUM OPINION

This case presents a constitutional

and statutory challenge to various

practices employed by the National Security

Agency, the Federal Bureau of Investiga-

tion and several of their agents in

conducting an investigation of the

plaintiff. Although long, the history of

this case is one consisting mainly of

contested discovery matters, most of

which have involved various privilege

claims on the part of the government.

See Jabara v. Kelley, 75 F.R.D. 475 (E.D.

Mich. 1977); Jabara v. Kelley, No. 3-9065

(E.D. Mich. June 27, 1975); Jabara v.

Kelley, 62 F.R.D. 424 (E.D. Mich. 1974).

The motions now before the Court, the

defendants' motion to dismiss and for

summary judgment and the plaintiff's

motion for summary judgment, represent the

first time the Court has been called upon

to resolve the merits of this suit.

The facts in this case have been

developed through a long and tedious

process of discovery which has caused the

Court a great deal of concern. However,

the Court is now satisfied that the

plaintiff has received all of the requested

discovery materials to which he is

entitled. Similarly, the Court is satis-

fied that the disclosures required of the

defendants have not compromised the

national security or any ongoing criminal

Or national security investigation.

Because the Court has upheld certain

governmental claims of executive privilege

and the state secrets privilege, the

following summary of facts is necessarily

incomplete. Although the public record is

incomplete, the defendants, during the

course of this litigation, have submitted

various in camera affidavits upon which

they now rely in support of their motions.

I FACTS

The plaintiff, Abdeen Jabara, a

Detroit attorney, has been and is an

active member of or participant in various

Arab organizations. Beginning in 1967,

the FBI began investigating Jabara and

that investigation continued with some

interruptions until December, 1975. The

investigation, although appearing to have

some continuity, involved a plurality of

discrete and independent events, each of

which has led to some FBI intelligence

gathering activity directed at Jabara.

Although the investigation did involve at

least one criminal aspect, the record is

devoid of any evidence linking the

plaintiff to the commission or anticipated

commission of any specific crime. Instead,

the defendants seek to justify their

intrusions into the plaintiff's life as a

legitimate national security investigation.

The investigatory tactics employed by

the FBI include physical surveillance by

informants and agents, inspection of

Jabara's bank records, warrantless

electronic surveillance by the FBI and NSA,

interviews of third parties regarding

Jabara and the maintenance and dissemina-

tion of information gained during the

investigation.

The most frequently used investiga-

tory tactic was the use of informants who

reported on Jabara's presence at various

public and private political gatherings.

In addition to reporting Jabara's presence

at such gatherings, the information

Supplied by the informant usually included

a summary of political discussions or

speeches by Jabara. In addition, the FBI

file contains several reports which appear

to have resulted from the physical sur-

veillance of the plaintiff. The record

also supports the conclusion that much of

the public and private surveillance of

Jabara was the result of incidental

contacts. In other words, the presence

of FBI informants at meetings and dis-

cussions attended by Jabara does not

appear to have resulted solely from an

investigatory interest in Jabara.

Included in information regarding Jabara

is data which the FBI has recieved from

Zionist sources.

In addition to the surveillance

mentioned above and as a part of broader

national security investigation, the FBI

sought to obtain information regarding

Jabara's bank records. Although there is

some dispute regarding the scope of this

portion of the investigation, it does

appear that the FBI obtained information

regarding a deposit to one of Jabara's

accounts, revealing the identity of one of

his clients.

The record also establishes that

Jabara's telephone and wire communications

have been intercepted by the FBI and NSA.

On several occasions the FBI has inciden-

tally intercepted Jabara communications

pursuant to electronic surveillance

directed at others. Furthermore, the FBI,

as part of its investigation of Jabara,

requested that NSA forward to the Bureau

any information coming into its

poss2ssion regarding the plaintiff.

Pursuant to this request NSA supplied the

FRI with several summaries of Jabara's

foreign wire communications. None of these

electronic surveillance activities were

conducted pursuant to a warrant.

The information obtained through

these various investigatory tactics has

been recorded and maintained in FBI files.

In addition, the FBI has disseminated

information regarding Jabara in its

possession to 17 government agencies and

three foreign governments.

From this factual basis, Jabara seeks

relief pursuant to eight separate causes

of action. The first cause of action

alleges a violation of the fourth amendment

and 18 U.S.C. §§ 2511 and 2520 as the result

of the defendants' electronic surveillance

of Jabara's telephone and other communica-

tions. The second cause of action alleges

that the defendants' conduct violated the

plaintiff's first amendment rights of free-

dom of speech and association. The third

cause of action alleges warrantless

searches, seizures and collection of

information in violation of the first and

fourth amendments. The fourth cause of

action alleges that the interception of

conversations between the plaintiff and

his clients violated the clients' sixth

amendment rights, and damaged Jabara's

professional reputation and his ability to

pursue his profession in violation of the

first and fifth amendments. The fifth

cause of action alleges unreasonable

invasions of the plaintiff's privacy in

violation of the first, fourth, fifth and

ninth amendments. The sixth cause of

action alleges that the inspection of the

plaintiff's bank records violated the

fourth amendment. The seventh cause of

action alleges that the conduct of the FBI

in this case exceeds its statutory author-

ity and is also beyond the constitutional

authority of the executive branch of the

federal government. The eighth cause of

action alleges that the defendants have

violated various provisions of the Privacy

Act by maintaining and disseminating

records concerning Jabara's first amend-

ment activities.

As part of the relief sought the

plaintiff requests an injunction against

the defendants' further interception of

his wire communications; an injunction

prohibiting the defendants from conduct-

ing surveillance, collecting, recording,

maintaining, using or disseminating

information of any kind about the lawful

political, social, banking, telephone and

other activities of the plaintiff; a

mandatory injunction ordering the

defendant FBI to produce before the Court

for destruction all records or other

materials of any kind maintained by them

concerning Jabara's constitutionally

protected activities.

II MOOTNESS

The defendants contend that Jabara's

claims for declaratory and injunctive

relief should be dismissed as moot because

of the current status of the FBI investiga-

tion of the plaintiff. First, the FBI,

through the affidavit of Special Agent

Robert F. Peterson, asserts that in

December 1975, it determined that it had

no further investigatory interest in

Jabara and thereupon terminated its in-

vestigation. Second, the defendants have

agreed to destroy all files maintained

under Jabara's name as requested by Jabara.

Third, the FBI has submitted an extensive

set of guidelines relating to criminal and

security investigations which it contends

l Jabara has also submitted a claim for

damages. That claim is not at issue here

since the Court has bifurcated this suit

with respect to the issues of liability

and damages.

protects against the possibility of future

abusive conduct such as that alleged in

the plaintiff's second amended complaint.

While some Courts have refused to

grant injunctive relief where official

policy revisions have, in effect, made

continuation of the challenged conduct

impossible, see Washington Free Community,

Inc. v. Wilson, 484 F.2d 1078 (D.C. Cir.

1973), and other courts have recognized

that injunctions should be cautiously

issued against police conduct on the mere

possibility that it may be repeated, see

Long v. District of Columbia, 469 F.2d

927 (D.C. Cir. 1972), the Court is of the

opinion that Jabara's claim for injunctive

relief is not moot. The Court has examined

the extensive set of regulations submitted

by the FBI and cannot conclude that they

preclude conduct of the type alleged here.

Indeed, many sections of the defendants'

brief could, in another context, be used

to support an argument that the FBI's

conduct in this case was within the ambit

of those regulations. Therefore, the

Court cannot conclude that these guidelines

would necessarily inhibit future FBI con-

duct of the kind alleged in this case and,

therefore, does not render Jabara's claim

for relief moot.

Nor is the Court persuaded that the

cessation of the Jabara investigation

requires that the plaintiff's claims be

dismissed as moot. Numerous Supreme

Court antitrust decisions have cautioned

against declaring a case moot where the

defendant would be free to reinstitute the

complained of practice. United States v.

Phosphate Export Assn.; 393 U.S. 199 (1968);

United States v. W.T. Grant Co., 345 U.S.

629 (1953). This consideration applies

with even more force where the defendant,

although agreeing to stop the conduct in

question, continues to assert its legality.

Walling v. Helmerich & Payne, Inc., 323

U.S. 37 (1944).

Based on these decisions, the Court

cannot conclude Jabara's claim for injunc-

tive relief is moot. Although the FBI has

claimed to have stopped the Jabara inves-

tigation in 1975, neither the Court nor

the plaintiff were aware of this fact until

October, 1978, when the defendants moved

for a summary judgment with respect to the

second amended complaint. Furthermore,

there is no indication that Jabara's poli-

tical views or his willingness to assert

them have changed. Considering the amount

of FBI attention focused on Jabara's poli-

tical activities, it is hard to conclude

that the investigatory interest of the FBI

will not be rekindled in the future. Fur-

thermore, given the fervor with which the

FBI asserts the legality of its conduct,

the Court is of the opinion that the chance

of recurrence is all the more probable.

The Court might be persuaded to

accept the defendants' argument were the

investigation more limited in scope or

time. However, given the length of the

investigation along with the numerous

investigatory tactics employed, the Court

finds it difficult to conclude that the

FBI would not reinstitute actions against

Jabara. Considerations of this type

militate against a finding of mootness

in cases such as this. Berlin Democratic

Club v. Rumsfeld, 410 F.Supp. 144 (D.D.C.

1976).

In sum, the Court is of the opinion

that the FBI's posture with respect to

the cessation of the challenged conduct

along with the existence of what the

Court perceives to be important and un-

resolved legal issues militates heavily

against declaring the plaintiff's claim

for injunctive relief moot.

The defendants also contend that the

cessation of the Jabara investigation

and the willingness of the FBI to under-

take file destruction makes the plaintiff's

claim for declaratory relief moot. In

essence, the defendants maintain that in

its present posture the case lacks the

immediacy and reality necessary to justify

a declaratory judgment. See Maryland

Casualty Co. v. Pacific Coal & Oil Co.,

312 U.S. 270 (1941).

There is no question that a contro-

versy exists with respect to the legality

of the defendants' conduct. The only

issue is whether the alleged cessation of

this activity is sufficient to deprive

this case of the required reality and imm-

ediacy. In its discussion of mootness

with respect to injunctive relief, the

Court pointed to many factors which permit

an inference that the FBI's investigation

of Jabara could well be reopened. This

is not a situation where the defendant

has admitted that his conduct is illegal

or has forsworn any intent to engage in

Similar conduct in the future. To the

contrary, the defendants earnestly and

vigorously assert the legality of their

conduct. Furthermore, the defendants have

asserted that one of their reasons for

attempting to avoid a declaratory judgment

in this case is so that they will be un-

fettered in future investigations of

Jabara should such investigations become

necessary. Assuming that Jabara continues

to publicly and privately espouse his

political views, an activity in which the

defendants have an apparent interest, the

Court cannot conclude that the probability

of similar conduct occurring in the future

is all that remote. Upon consideration of

the above cited factors, therefore, the

Court is of the opinion that this case is

one where the threat of future investiga-

tion is sufficiently real to permit Jabara

to pursue the remedy of a declaratory

judgment.

III JUSTICIABILITY

The defendants maintain that Jabara's

first amendment claims are not justiciable

at least insofar as they relate to certain

investigatory practices because his allega-

tions of harm amount to nothing more than

a subjective chill of his right of free

speech. Within this ostensibly non-

justiciable category of claims, the

defendants group the following: the use

of informers and agents to monitor Jabara's

public and private political speeches and

discussions; the physical surveillance of

Jabara's visible activities on three

occasions; interviews with Jabara's neigh-

bors; and the dissemination of information

obtained by these means.

The major dispute between the parties

with respect to the issue of justiciability

is the interpretation to be given to the

Supreme Court decision in Laird v. Tatum,

408 U.S. 1 (1972). In Tatum, the

plaintiffs alleged that the United States

Army violated their first amendment rights

through a program of domestic surveillance.

The conduct complained of was part of a

system of domestic intelligence collection

undertaken by the Army to help it identify

possible future civil disorders. The sys-

tem consisted of the collection of informa-

tion about public activities thought to

have some potential for civil disorder,

the reporting of that information to Army

Intelligence Headquarters, the dissemina-

tion of these reports from headquarters to

major Army posts around the country, and

the storage of this information in a com-

puter data bank. Much of the information

was collected from the news media, but

some of it was obtained from civilian law

enforcement agencies and Army agents who

attended public meetings.

The Supreme Court held that the

plaintiffs' allegations regarding this

system of data collection failed to

present a justiciable controversy because

the only harm alleged by the plaintiffs

was a "Subjective chill" on their first

amendment right of free speech. The

Court distinguished the plaintiff's

allegations from the facts in other cases

involving a First Amendment chill by

noting:

In recent years this Court has

found in a number of cases that

constitutional violations may arise

from the deterrent, or "chilling,"

effect of governmental regulations

that fall short of a direct prohibi-

tion against the exercise of First

Amendment rights. E.g., Baird v.

State Bar of Arizona, 401 U.S. 1

(1971); Keyisihian v. Board of

Regents, U.S. 589 (1967);

Lamont v. Postmaster General, 381

U.S. 301 (1965); Baggett v. Bullitt,

377 U.S. 360 (1964). In none of

these cases, however, did the chill-

ing effect arise merely from the

individual's knowledge that a govern-

mental agency was engaged in certain

activities or from the individual's

concomitant fear that, armed with

the fruits of those activities, the

agency might in the future take some

Other and additional action detri-

mental to that individual. Rather,

in each of these cases, the challenged

exercise of governmental power was

regulatory, proscriptive, or compul-

sory in nature, and the complainant

was either presently or prospectively

subject of the regulations, proscrip-

tions, or compulsions that he was

challenging. Id. at ll.

After noting that the plaintiff's

allegations could be labeled as a disagree-

ment with the Executive Branch and that the

chill alleged resulted from some "specu-

lative apprehension" that the information

obtained would be used against them in the

future, the Court held that these "[a]lle-

gations of a subjective 'chill' are not an

adequate substitute for a claim of present

objective harm or a threat of specific

future harm." Id. at 14.

The defendants rely on Tatum and sub-

sequent decisions to support their conten-

tion that several of Jabara's claims are

nonjusticiable. It is true that Tatum and

some lower courts have failed to find a

justiciable issue in claims for relief

similar to those presented by Jabara.

Clearly Tatum forecloses the possibility

of a justiciable subjective chill arising

from a general system of public survei-

llance, data gathering and dissemination,

absent some sort of harassment. Cases

following Tatum have found similar claims

to be nonjusticiable. In Donohoe v.

Duling, 465 F.2d 196 (4th Cir. 1972), the

Court found no justiciable controversy

where police conducted surveillance of

demonstrations and public vigils and made

and retained photographs of the demonstra-

tors. In Fifth Avenue Peace Parade

Committee v. Gray, 480 F.2d 326 (2nd Cir.

1973), the Court failed to find a justi-

ciable controversy where the FBI had

obtained records from a bank and a bus

company in order to determine the identity

and number of persons planning to attend a

demonstration. Finally, in Philadelphia

Yearly Meeting of the Religious Society

of Friends v. Tate, 519 F.2d 1335 (3rd

Cir. 1975), the Court found no justiciable

controversy existed with respect to the

plaintiffs' claims that their first amend-

ment rights had been chilled by police

activities consisting of photography and

data gathering at public meetincs and the

dissemination of this information to other

law enforcement POR

Despite these cases relied on by the

defendants, the Court is of the opinion

that Jabara has presented a justiciable

first amendment claim. His allegations of

a system of independently unlawful intru-

sions into his life as the result of his

2 Despite this, the Court found that

the plaintiffs had alleged sufficient harm

as a result of the defendants' failure to

restrict disclosure of the information in

their possession to police groups and

their actual disclosure on national tele-

vision of the names of the plaintiff

Organizations and certain of the individ-

ual plaintiffs as subjects of police

dossiers.

lawfully held and lawfully expressed

political views is sufficient to take the

chilling effect which he alleges outside

the realm of speculation and subjectivity.

Unlike Tatum this is not a case where the

plaintiff is attacking a general system

of intelligence gathering. Nor can the

Court say that, as in Tatum, the chill

alleged by Jabara results from the mere

knowledge that he is being investigated.

The plaintiff alleges that not only

has he felt fear at expressing his poli-

tical views, but that others have been

deterred from associating with him because

of the FBI investigation. Not only this,

but the plaintiff alleges that false and

misleading reports of his activities have

been accumulated by the FBI and dissemin-

ated to other federal agencies and foreign

governments. In addition, Jabara has

alleged injury to his reputation and legal

business as the result of publicity

surrounding the FBI investigation of him.

Case law supports the proposition

that allegations such as the ones set

forth in this case present a justiciable

controversy. For example, in Berlin

Democratic Club v. Rumsfeld, 410 F.Supp.

144 (D.D.C. 1976), the Court stated:

This Court agrees that actions

beyond “legitimate surveillance

activities" are a proper subject of

challenge. Thus, while collection

and retention of information, if

collected in a legal manner, cannot

be challenged, public dissemination

of that information in a false or

defamatory manner and with no lawful

purpose, disruption of legitimate

activities, termination of employ-

ment, illegal electronic surveillance,

and other forms of harassment are

subject to challenge as beyond

“legitimate surveillance activities."

Moreover, even legitimate surveillance

activities, if undertaken in conjunc-

tion with illegitimate activities in

a manner which raises the inference

that the motive was intimidation or

coercion, would be subject to chall-

enge. Cf. Allee v. Medrano, 416 U.S.

802, 812, 94 S. Ct. 2191, 2198, 40

L.Ed. 2d 566, 578 (1974); United

States v. McLeod, 385 F.2d 734, 750

(Sth Cir. 1967); Lankford v. Gelson,

364 F.2d 197 (4th Cir. 1966). Even

a cursory reading of the acts alleged

in the complaint raises a sufficient

inference to render this action

justiciable. Id. at 15l.