# Petition — Jabara v. Webster > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0783%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 863 ## 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, Ve 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, Ve 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 18 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 27 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 I. 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 44 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. 2 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. 3 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. 4 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. 5 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 6 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 7 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 8 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 9 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 10 1 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. 11 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 12 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. 13 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. 14 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 15 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 16 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 17 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 18 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. 19 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 20 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 21 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 22 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. 23 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 24 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 25 a cursory reading of the acts alleged in the complaint raises a sufficient inference to render this action justiciable. Id. at 15l. See also Alliance to End Repression v. Rochford, 407 F.Supp. 115 (N.D. Ill. 1975) (Tatum found inapposite where the plain- tiffs alleged that "they were specific objects of both overt and covert surveill- ance on the part of the defendants") ; Paton v. LaPrade, 524 F.2d 862 (3rd Cir. 1975) (sufficient allegation of harm by a high school student whose future job Opportunities were threatened by FBI maintenance of a file on her). Similarly, in Socialist Workers Party v. Attorney General, 419 U.S. 1314 (1974) (Marshall, Circuit Justice), Justice Marshall, in ruling on an application to stay an order entered by the Court of Apeals for the Second Circuit, cautioned against an overbroad application of Tatum to cases where the alleged chill is 26 specific. In Socialist Workers Party, the plaintiffs challenged the FBI's intention to infiltrate the national convention of the Young Socialist Alliance On the ground that it would dissuade mem- bers from attending and would impede the exercise of free speech by those in attendance. Although Justice Marshall resolved the motion for a stay in favor of the government, he rejected the contention that the plaintiffs had failed to present a justiciable controversy: In this case, the allegations are much more specific [than those in Tatum]; the applicants have complained that the challenged investigative activity will have the concrete effects of dissuading some YSA dele- gates from participating actively in the convention and leading to possible loss of employment for those who are identified as being in attendance. Whether the claimed "chill" is sub- stantial or not is still subject to question, but that is a matter to be reached on the merits, not as a thre- shold jurisdictional question. The specificity of the injury claimed by the applicants is sufficient, under Laird, to satisfy the requirements of Art. III. Id. at 1314. 27 For the reasons set forth above, the Court denies the defendants’ motion to dismiss for lack of justiciability. IV. CONSTITUTIONAL CLAIMS The Court's conclusion that Jabara has alleged sufficient harm to state a justiciable claim of course does not establish that he is entitled to relief. In order to establish such entitlement Jabara must show that this injury was the result of violations of his constitutional rights. The major constitutional allega- tions in the complaint are that Jabara's first and fourth amendment rights were 3 violated by the actions of the defendants. 3 The plaintiff has also alleged vio- lations of his Fifth, Sixth and Ninth Amendment Rights. The Court will deal with the Sixth Amendment claim later in this Opinion. With respect to the claimed violations of the Fifth and Ninth Amend- ments, the Court is of the opinion that they add nothing to Jabara's other con- stitutional causes of action and are to be dismissed insofar,as they purport to re- present independent grounds for relief. 28 (a) The Fourth Amendment Claims It is clear to the Court that many of the investigatory practices employed by the defendants are not violative of fourth amendment law. First, there can be no doubt that a person's reasonable expecta- tion of privacy is not violated by physical surveillance in public. Fifth Avenue Peace Parade Committee v. Gray, 480 F.2d 326 (2nd Cir. 1973). Nor is the use of informants for surveillance purposes violative of the fourth amendment, without some sort of harassment or incitement to crime. Hoffa v. United States, 385 U.S. 293 (1966); Handshu v. Special Services Division, 349 F.Supp. 766 (S.D. N.Y. 1972). Similarly, in United States v. Miller, 425 U.S. 435 (1976), the Court held that the government does not violate a criminal defendant's fourth amendment rights when it reviews his bank records. Jabara seeks to dis- tinguish Miller on the basis that it 29 involved a criminal investigation. This position is untenable. The Miller court held that the documents in question were the business records of the bank and that a customer had no reasonable expectation of privacy therein: The depositor takes the risk, in revealing his affairs to another that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not pro- hibit the obtaining of information revealed to a third party and con- veyed by him to Government authori- ties, even if the information is re- vealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. 425 U.S. at 443. In light of this broad language, the Court is of the opinion that a distinction based upon the type of investigation involved is without merit. Since Jabara can claim no reasonable expectation of privacy in such records, his fourth amendment rights are not violated by the inspection thereof. Finally, the Court is of the opinion 30 that the maintenance and dissemination of information gained through practices not violative of the fourth amendment cannot in and of itself violate the fourth amend- Cig For the reasons set forth above, the Court grants the defendants' motion to dis- miss with respect to all fourth amendment claims based on physical surveillance, the use of informers, the inspection of bank records and the maintenance and dissemina- tion of information obtained through these practices. (b) The First Amendment Claims Jabara's first amendment claims center around the alleged inhibiting effect that the defendants' activities have had upon his first amendment rights of free speech 4 Although the plaintiff alleges that information so disseminated was in some respects false, this fails to state a fourth amendment cause of action since no independent privacy violation is alleged. 31 and association. The defendants argue that the plaintiff is not entitled to judgment upon these claims because the first amendment gives him no greater right against governmental investigatory intru- sion than the fourth amendment. Accord- ingly, the defendants argue that a first amendment cause of action cannot be predicated on investigatory tactics, such as those outlined above, which the Court has held to be nonviolative of fourth amendment rights. The plaintiff, on the other hand, argues that several cases have implicitly recognized that the first amendment affords a person greater sub- stantive rights than the fourth amendment. There is little authority regarding the relationship between the first and fourth amendments in the context of govern- mental investigations. The most exhaustive and explicit treatment of the issue is contained in Reporters Committee for 32 Freedom of the Press, et al., v. American Telephone & Telegraph Co., et al., No. 76-2057 (D.C. Cir., August ll, 1978). Reporters Committee involved a challenge by several journalists and newspapers to the practice of a telephone company of providing telephone billing records of journalists' calls to government agents investigating possible crimes. The majority of the Court resolved the first and fourth amendment claims against the plaintiffs. Circuit Judge Wilkey in his opinion for the Court also discussed the relationship of the first and fourth aeanieeaees With respect to the plaintiffs' fourth amendment claims, Judge Wilkey found the telephone company's action indistinguishable from the examina- tion of bank records, and he therefore 5 This discussion was not joined in by © the other judges on the panel and was not necessary to disposition of the case. 33 found no fourth amendment violation on the authority of Miller, supra. Judge Wilkey then held that because there was no fourth amendment violation there could be no first amendment violation. He described the plaintiffs' argument as follows: The crux of plaintiffs' argu- ment, then, is that they have a right to establish relationships in secret under circumstances in which the Fourth Amendment ensures no secrecy and that they have a right to engage in furtive action free from investi- gative scrutiny within an arena ordinarily open to such scrutiny. In short, plaintiffs' claim that the zone of privacy guaranteed them by the Fourth and Fifth Amendments does not give them adequate privacy within which to conduct clandestine collec- tion and that they, apart from other citizens, must have a broader zone of privacy. Slip Op. at 43. and he posited the issue as follows: The question thus presented is this: Does the First Amendment afford plaintiffs this extra margin of privacy by imposing substantive or procedural limitations on good faith criminal investigative action above and beyond the limitations imposed by the Fourth and Fifth Amendments. 34 Judge Wilkey answered this question in the negative: In my view, the guarantees of the Fourth and Fifth Amendments achieve their purpose and provide every individual with sufficient protection against good faith inves- tigative action for the full enjoy- ment of his First Amendment rights of expression. To the extent an individual insists that he must shield himself from the prospect of good faith investigation and operate in secrecy in order to exercise effectively particular First Amendment liberties, he must find that shield and establish that secrecy within the framework of Fourth and Fifth Amend- ment protections. This is not to say that the First Amendment never gives rise to any privacy-type interests apart from those secured by the Fourth and Fifth Amendments. It does mean, however, that such interests are overridden in criminal cases by the public's interest in effective law enforcement investigation at least insofar as they go beyond pro- tections already afforded by the Fourth and Fifth Amendments. Slip Op. at 44. In reaching this conclusion, Judge Wilkey relied on a long line of cases involving varying fact situations. He placed principal reliance on Zurcher v. 35 Stanford Daily, 436 U.S. 547 (1978), where police had searched the offices of a coll- ege newspaper pursuant to a valid search warrant, The District Court granted the plaintiff journalists' request for declar- atory relief based on their argument that the first amendment required that evidence in a newspaper's possession be obtained by a subpoena duces tecum rather than by a search warrant unless police make a clear showing that the evidence would otherwise be destroyed. The Court, after admitting that first amendment values were implica- ted, in effect dismissed any notion that the first amendment provided additional protection beyond that accorded by the fourth amendment in such circumstances: Neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants, however, call for imposing the regime ordered by the District Court. Aware of the long struggle between Crown and press and desiring to curb unjustified official intrusions, the Framers took the 36 enormously important step of subject- ing searches to the test of reason- ableness and to the general rule re- quiring search warrants issued by neutral magistrates. They neverthe- less did not forbid warrants where the press was involved, did not re- quire special showings that subpoenas would be impractical, and did not insist that the owner of the place to be searched, if connected with the press, must be shown to be implicated in the offense being investigated. Further, the prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment in- terests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant-- probable cause, specificity with respect to the place to be searched and the things to be seized, and over- all reasonableness--should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices. Id. at 565. As further support for his conclusion, Judge Wilkey cites several cases dealing with mail covers, the use of informants and physical surveillance, all of which tend to indicate by way of implication 37 that a good faith criminal investigation which does not tread on fourth amendment rights does not violate the first amend- ment. See Slip Op. at 49-53. In support of their contention that the first and fourth amendments are co- extensive in the context of a legitimate investigation, the defendants also rely on Sinclair v. Kleindienst, No. 610-73 (D.D.C. Sept. 23, 1977), where the plaintiff challenged warrantless electron- ic surveillance of his telephone communi- cations as authorized by the Attorney General. In addition to the alleged violations of their fourth amendment rights, the plaintiffs also alleged viola- tions of the first, ninth and fifth amend- ments. Although the Court held that these alleged violations would be relevant to the issue of damages, it concluded that they did not provide an independent basis for recovery: 38 These allegations are necessar- ily intertwined with the reasonable- ness of the wiretaps and the good faith belief of the defendants in the legality of their conduct, issues which were raised in the first cause of action and which remain in the case. Therefore, these causes of action must succeed or fail as the first cause of action succeeds or fails. To the extent they are not in- dependent bases for recovery, they are dismissed. These issues remain in the case, however, for if plaintiffs prove the wiretaps were unreasonable and the defendants acted in bad faith, they will be permitted to show any chill on their first amendment rights, invasion of their privacy, or their subjection to a bad faith prosecution in order to determine the measure of damages to which they would be entitled. Slip Op. at ll. The Court is convinced that the analysis of Judge Wilkey and that followed by the Court in Sinclair is correct insofar as it sets forth the legal principle that the first amendment and the fourth amend- ment provide coextensive zones of privacy in the context of a good faith criminal investigation. Furthermore, the Court believes that this principle applies with equal force to good faith national 39 security investigations which are not strictly criminal in nature. Any holding otherwise would clearly place an insur- mountable burden on any good faith inves- tigation. Almost any investigation, no matter how nonintrusive, will implicate some first amendment rights. Physical surveillance, the use of informers and discussions with other persons about the subject will necessarily reveal some of the subject's associations, beliefs, expressions and communications of all kinds. To tailor investigations se as to avoid implicating a subject's first amend- ment activites would be impossible. This is especially true when one considers the varied and common forms of speech which receive first amendment protection. The Court is unpersuaded by the plaintiff's argument that the principle of coextensive first and fourth amendment. protection in the context of a good faith 40 investigation is refuted by a number of cases which have upheld the justiciability of first amendment claims without a dis- cussion of relevant fourth amendment principles. Aside from the fact that the issue now before the Court is different from those decided in the cases relied on by the plaintiff, the Court is of the Opinion that these cases for the most part support, rather than refute, the proposi- tion that in the context of a good faith investigation, the privacy protections guaranteed by the first and fourth amend- ments are coextensive. Nearly all of the cases relied on by Jabara mention an allegedly illegitimate investigatory motive or illegitimate in- vestigatory practices as part of the basis for their decision. For example, in Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335, 1338-39 (3rd Cir. 1975), the 41 Court stated: It is not apparent how making infor- mation concerning the lawful activi- ties of plaintiffs available to non- police groups or individuals could be considered within the proper ambit of law enforcement activity. ... We think plaintiffs" allegations of specific identification of most of the plaintiffs in the television broadcast when joined with the absence of a lawful purpose, make an adequate showing for pleading purposes of an invasion of plaintiffs' rights to associational privacy and freedom of speech (emphasis supplied). And in Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144, 151 (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 employment, illegal electronic surveillance, and other forms of harassment are subject to challenge as beyond "legitimate Surveillance activities." Moreover, even legitimate surveillance activi- ties, if undertaken in conjunction with illegitimate activiites ina manner which raises the inference 42 that the motive was intimidation or coercion, would be subject to challenge. See also Handshu v. Special Services Division, 349 F.Supp. 766, 771 (S.D. N.Y. 1972). ("A hearing may establish that some of the alleged informer and infiltra- tion activities are unrelated to legiti- mate law enforcement functions.") Fifth Avenue Peace Parade Committee v. Gray, 480 F.2d 326, 332 (2nd Cir. 1973) ("Beyond any reasonable doubt that FBI had a legitimate interest in and responsibility for the Maintenance of public safety and 6 organ. .+« »") 6 Other cases relied on by Jabara, al- though not referring to illegitimate con- duct specifically, clearly involved alle- gations of police activity outside the scope of legitimate investigatory tactics. See American Civil Liberties U. v. City of Chicago, 431 F.Supp. 25 (1976) (physical attacks and disruption of sources of fin- ancial support); Alliance to End Repression v. Rochford, 407 F.Supp. 115 (N.D. Ill. 1975) (incitement to commit unlawful acts, warrantless electronic surveillance, illegal search and seizure, and summary punishment and harassment); Philadelphia 43 The only case to suggest a contrary result is Paton v. LaPrade, No. 1091-73 (D. N.J. November 29, 1978), where the plaintiff alleged a first amendment viola- tion when the return address of her letter to the Socialist Workers Party was record- ed by the FBI, pursuant to a mail cover placed on the addressee. The plaintiff had intended to direct this letter to the Socialist Labor Party as part of an assign- ment for a high school social studies course. Although the Court found that the plaintiff's fourth amendment rights were not violated by the mail cover, the Court held that the postal regulation authoriz- ing mail covers for national security purposes was so vague and overbroad that it violated the first amendment. Resistance v. Mitchell, 58 F.R.D. 139 (E.D. Pa. 1972) (physical violence, threats, illegal searches and seizures, illegal electronic surveillance and denial of the right to counsel). 44 Although on the surface Paton appears to stand for the proposition that the first amendment gives one a greater protection from good faith investigatory practices than the fourth amendment, a closer exam- ination discloses that the decision in Paton was a narrow one and that it, in fact, supports the proposition previously adopted by this Court. In essence, the Court in Paton held that the term "nation- al security" as used in the Postal Regula- tion was so vague and overbroad that to sanction mail covers in its name would lead to abuses and would, in fact, permit mail covers to be employed by public officials "to pursue their personal pre- dilections." Thus, the Court did not find that a mail cover which was imposed because of legitimate national security concerns was invalid. Rather, it found a regula- tion permitting both legitimate and ille- gitimate mail covers to be unconstitutional. 45 There is no indication that the Paton court, if faced with a decision not involv- ing the constitutionality of a statut# or regulation would have held that the zone of privacy guaranteed by the first amend- ment exceeds that provided by the fourth amendment in an objectively legitimate national security investigation. In fact, the Court specifically recognized that mail covers were legitimate in the context of a valid criminal investigation. Thus, it is clear to this Court that Paton did not question the proposition that first amendment privacy rights must yield in the face of a good faith investigation; instead, it held that a statute which did not distinguish between legitimate and illegitimate national security investiga- tions was invalid. It is clear from the above that the crucial issue with respect to investigatory practices under consideration in this 46 section of the opinion is whether the FBI's investigatory conduct can be termed a good faith national security ot: From the evidence presented both in the public record and in the in camera affida- vits, the Court concludes that genuine issues of material fact exist with respect to this issue, and that the summary judg- ment motions of both the plaintiff and defendants must be denied. In its earlier Opinions in this case the Court has alluded to the merits of the investigation. For example, a 1974 opinion concerning dis- covery matters stated "the court is of the opinion that the investigation which the 7 The Court will not at this time attempt a precise definition of this term. However, in the Court's opinion, a "good faith national security investigation" suggests more than a subjective perception of a threat to the national security--it suggests an investigation which is in response to a demonstrable threat to the nation or its citizens and which is calcu- lated to deal with or provide information regarding that threat. 47 8 conducting was defendants admit they were conducted pursuant to legitimate govern- mental concerns." Jabara v. Kelley, 62 F.R.D. 424, 431 (E.D. Mich. 1974). How- ever, in a 1977 opinion, again regarding discovery matters, the Court stated that "its in camera review has not revealed any evidence to establish that the plaintiff or the domestic organization to which he belongs has been implicated in any way with a foreign agent or organization of or acting in collaboration with a foreign power." Jabara v. Kelley, 75 F.R.D. 475, 493 (E.D. Mich. 1977). These passages do not reflect inconsistent findings but merely indicate the varying inferences which can be drawn both from the in camera submissions and the public record in the 3 In view of the defendants' admission that the investigation continued until at least December, 1975, the use of the past tense appears to have been inappropriate. 48 case. On the one hand, the in camera affidavits tend to indicate that a gener- alized and legitimate government concern provided the impetus for the investigation. On the other hand, the length of the investigation, its seeming preoccupation with Jabara's political views, the fact that in many instances Jabara was encour- aging other Arabs to mount legal challenges to FBI investigations and the failure of the investigation to uncover any concrete evidence that Jabara's activities implica- ted national security along with other factors tend to indicate that the investi- gation was not wholly prompted by legiti- mate or good faith national security concerns. As a result, the Court is of the opinion that it can grant neither Jabara's nov the defendants' motion for summary judgment with respect to the plaintiff's first amendment claim on the basis of the record as it now stands. 49 The Court realizes that this decision places the future course of this litiga- tion in some doubt. It may well be that a public trial on the nature of the FBI's investigation will be impossible because of national security considerations. How- ever, the Court cannot take such considera- tions into account when deciding a motion for summary judgment. The Court is bound to grant such relief only when no genuine issue of material fact exists. Given the nature of the record in this case, the Court must conclude that a genuine issue regarding the motives and legitimacy of the Jabara investigation exists, the re- solution of which requires a fact finder. (c) The Sixth Amendment Claim As part of his fourth cause of action, the plaintiff alleges that the sixth amend- ment rights of his clients were violated by the interception of telephone communica- tions between himself and said clients. 50 The Court is of the opinion that this portion of Jabara's complaint must be dis- missed pursuant to F.R.C.P. 12(b) (6) because it fails to state a claim upon which relief can be granted. Manifestly, the rights guaranteed by the sixth amend- ment are those of the client and not the attorney. Therefore, assuming that a sixth amendment violation can be asserted on the facts of this san ee the client has standing to assert a violation of his sixth amendment rights. In this case, Jabara, even as an attorney, lacks suffi- cient standing to assert violations of his clients' rights to counsel as a personal cause of action. For this reason, the plaintiff's sixth amendment claim must be dismissed. 9 The decision in Moro v. Telemundo Incorporado, 387 F.Supp. 920 (D. Puerto Rico 1974), casts doubt on the validity of such an assumption. 51 V. ELECTRONIC SURVEILLANCE BY THE FBI The defendants have also moved for a summary judgment with respect to the plaintiff's constitutional and statutory claims arising out of the FBI's incidental interception of Jabara's conversations with individuals who were the target of FBI aes The plaintiff's complaint alleges that this conduct violated the fourth amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. The Court is of the opinion that the defendants' motion is to be granted with respect to these claims. First, it is clear that the plaintiff's theory of recovery cannot be based on the provisions of Title III. 10 The plaintiff had admitted in his brief in support of his motion for summary judgment that the record does not support a finding of prima facie illegal electron- ic surveillance. 52 Although Title III requires a warrant for certain types of electronic surveillance, it did not legislate with respect to the President's power to authorize electronic surveillance with respect to matters of national security. 18 U.S.C. § 2511(3). In United States v. United States Court (Keith), 407 U.S. 297 (1972), the Supreme Court held that clear language of Title III reveals that it did not legislate with respect to national security surveillances and that such surveillances therefore are not subject to the warrant requirements contained in 18 U.S.C. § 2518. Accord, Halliman v. Mitchell, 418 F.Supp. 1056 (N.D. Cal. 1976). However, in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), (en banc), a plurality of the Court held that Title III was applicable to any situation where a warrant was constitu- tionally required for electronic surveill- ance. In other words, the Court 23 recognized that while Title III does not legislate with respect to the necessity of obtaining a warrant for national security wiretaps, it does provide procedures and remedies applicable to any national secur- ity wiretap where a warrant is otherwise required by the Constitution. Thus, even considering Zweibon, it is clear that Title III does not in and of itself require a warrant for national security investigations. As a result, the issue which must be resolved is whether there is a constitutional basis, aside from Title III, which requires a warrant for electronic surveillance such as that conducted in this case. In Keith, the Court held that a warrant was constitu- tionally required for domestic national security wiretaps. However, the Court specifically left open the issue of whether a warrant is required for a toreign national security wiretap: 54 As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed and express no opinion as to the issues which may be involved with respect to the activities of foreign powers or their agents. 407 U.S. at 321-22. Courts considering the question left open in Keith have almost unanimously held that a warrant is not required for a foreign national security surveillance: [B]ecause of the President's consti- tutional duty to act for the United States in the field of foreign rela- tions, and his inherent power to pro- tect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, [430 F.2d 165 (5th Cir. 1970), rev'd on other grounds 403 U.S. 698 (1970)], that the President may constitution- ally authorize warrantless wiretaps for the purposes of gathering foreign intelligence. United States v. Brown 484 F.2d 418, 426 (5th Cir. 1973). Accord, United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Smith, 321 F.Supp. 424 (C.D.Cal. 1971); United States v. Humphrey, 456 F.Supp. 51 (E.D. Va. 19780. 55 The only case questioning this pro- position is Zweibon v. Mitchell, supra, involving electronic surveillance of the Jewish Defense League. The Zweibon pluralicy voiced its disapproval of the decisions in Brown and Butenko and ex- pressed a belief that a warrant is re- quired for both domestic and foreign national security electronic surveillances. Despite this, the plurality opinion did not go so far as to hold that a warrant was required for all foreign intelligence surveillances: the President's authority with respect to the conduct of foreign affairs does not excuse him from seeking judicial approval before instituting a surveillance, at lrast where the subject of the surveillunce is a domestic organization that is not the agent of or acting in collab- Oration with a foreign power. Id. at 655. In light of these decisions, the Court is of the opinion that a warrant is not required for foreign intelligence elec- 56 tronic surveillance authorized by the President where the target of the sur- veillance is an agent of or acting in collaboration with a foreign power. Applying this holding to the instant case, the Court concludes that a warrant was not required for the FBI wiretaps in question. In an earlier opinion, the Court found that the subjects of these surveillances were associated with a foreign-based international terrorist movement. Jabara v. Kelley, 75 F.R.D. at 489. In addition, the Court has carefully reviewed the in camera affidavit of FBI Special Agent Robert F. Peterson regarding the targets of the FBI wiretaps at issue. Based on the facts set forth in this affidavit, it would be impossible to con- clude that the surveillance in question was not primarily for foreign intelligence purposes. Nor would it be possible to conclude that the subjects of these sur- 57 veillances were not agents or collabora- tors of a foreign power. ‘herefore, on the authority of the above cited cases, the Court holds that prior judicial approval in the form of a warrant was not required for the surveillancesin question. In addition, the Court's finding that the wiretaps in question were primarily for foreign intelligence purposes forecloses any possibility of a post-interception judicial finding that the electronic sur- veillances in question were unreasonable. United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974). Accordingly, the Court grants the defendants' motion for summary judgment with respect to those claims con- cerning the reasonableness of the FBI's interceptions as well as those claims based on the failure to procure a warrant for such interceptions. VI NSA SURVEILLANCE During the course of its investiga- 58 tion of Jabara, the FBI requested the National Security Agency to supply any available information regarding the plaintiff that might come into its possession. Pursuant to this request, summaries of Jabara's electronically intercepted communications were forwarded by NSA to the FBI. Two of these communi- cations were used as leads and the FBI disclosed their contents outside the Bureau in order to identify and obtain a document referred to in one of the commu- nications and to confirm Jabara's travel plans as discussed in another communica- tion. Based on this record, the plaintiff maintains that he is entitled to declara- tory and injunctive relief with respect to these warrantless electronic surveill- ances because they violate his constitu- tional and statutory rights. The defendants, on the other hand, have moved 59 for dismissal of this cause of action for want of proof, arguing that the evidence required to litigate this issue is covered by the state secrets privilege. This con- tention is based on the fact that the Court has upheld claims of privilege with respect to the method of interception employed by NSA and the contents of the communications intercepted. Before reaching the merits of these contentions, it is important to distinguish the NSA intercepts from the incidental interceptions by the FBI discussed earlier. First, while it is not clear that Jabara was the target of the NSA interceptions, it is apparent that the FBI specifically requested summaries of Jabara's foreign communications. Thus, at least with respect to the examination and disclosure of these summaries, the conduct of NSA and the FBI was not incidental to the investi- gation of nonparties. Second, while the 60 Court cannot say with any certainty whether the interceptions in question were conducted pursuant to the investigation of an agent or collaborator of a foreign power, there is no evidence that Jabara's communications were targeted by the FBI for examination because of the identity of the other party. In other words, while the impetus for the interceptions in question remains unclear, the record, including the in camera affidavits, does not disclose any reason for the targeting and examination of these communications other than the facts that Jabara was a party to them, The primary issue, therefore, is whether this factual background establishes a case of illegal electronic surveillance or whether the claim must be dismissed because its proof would involve the dis- closure of information guarded by the state secrets privilege. In support of their 61 position that the claim must be dismissed, the defendants rely on Halkin v. Helms, No. 75-1773 (D.D.C. June 30, 1977) aff'd in part and rev'd in part, No. 77-1922 (D.C. Cir. June 16, 1978), where the plaintiffs sought relief for allegedly unlawful electronic surveillance activi- ties conducted by NSA. In response to NSA's motion, the District Court dismissed the complaint of Halkin et al. with respect to certain interceptions holding that national security considerations pre- cluded disclosure of whether the alleged interceptions had in fact taken place. With respect to certain other alleged interceptions, the Court held that the national security would not be compromised by requiring NSA to disclose whether or not these interceptions occurred. On appeal, the Circuit Court of Appeals for the District of Columbia affirmed the District Court's dismissal 62 with respect to the first group of inter- ceptions. The Court of Appeals reversed with respect to the second group of alleged interceptions, holding that even disclosure of the fact of interception would jeopardize the national security. See also Totten v. United States, 92 U.S. 105 (1875); Kinoy v. Mitchell, 67 F.R.D. 1 (S.D. N.Y. 1975). Although the Court agrees with the general proposition that an action should be dismissed if its proof would disclose state secrets, this case is clearly diff- erent from Halkin. In Halkin the District Court dismissed certain allegations "because the threshold and ultimate issue-- the fact of interception--cannot be ad- mitted or denied." Slip Op. at 5. In this case, that threshold and ultimate issue is an admitted fact. There is no question that summaries of several of the plaintiff's conversations were obtained 63 by the FBI from NSA. This, the plaintiff argues, entitles him to the relief sought because there was no prior judicial approval. The Court is of the opinion that resort need not be made to privileged material to establish a violation of the plaintiff's constitutional rights and that the plaintiff is entitled to a judg- ment with respect to the defendants' liability as to this issue. The defen- dants' contention that the technique used to intercept Jabara's communications some- how poses questions of whether the fourth amendment is applicable has no merit what- soever. Long ago the Supreme Court recog- nized that "the Fourth Amendment protects people not places" and that the method of intrusion has no bearing on the protection ll afforded by that amendment when the 11 "[O]nce it is recognized that the Fourth Amendment protects people--and not 64 intrusion is made into an area where there is a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). In light of Katz, the Court cannot give credence to the defendants' assertion that "the methodology described by paragraph 5(b) [of the in camera affidavit of Secretary of Defense Harold Brown] alone suggests on its face. . . that the very applicability of the Fourth Amendment is arguably not at issue." Defendants' Brief at 22. From the Court's review of Secretary Brown's affidavit, it is apparent that the fact that Jabara's communications were simply '‘areas'--against unreasonable searches and seizures, it becomes clear that the reach of that amendment cannot turn upon the presence or absence of a physical intrusion into any given en- closure. .. . The fact that the elec- tronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional sig- nificance." Katz v. United States, 389 U.S, 347, 353 (1967). 65 intercepted in the ways described without more may present a question of whether his privacy has been violated. In this case, however, not only is interception an ad- mitted fact, but it is also admitted that Jabara's intercepted communications were targeted for transmission to and examina- tion by the FBI. Based upon these admiss- ions, it is impossible for the Court to conclude that the fourth amendment has not been violated. The defendants do not and could not contend that Jabara has no reasonable expectation of privacy in his foreign communications, In addition, the defend- ants cannot rationally argue that the interception of these communications, when coupled with the transmission of summaries of their contents, did not vio- late this privacy. Thus, the only question which must be resolved is whether the procedure is immune from the warrant 66 requirement. In their brief the defendants argue that: Plaintiff's presumption that commu- nications to which he was a party were not acquired as a result of Surveillance on an agent of a foreign power is totally unsupported by the record. Communications have both a sender and a recipient. Plaintiff apparently overlooks the possibility that the party to his communication, or some other aspect of its content, may have been the actual object of surveillance and not the plaintiff himself. Defendants' Brief at 22. If, in fact, the object of the surveill- ance in question was an agent or collabor- ator of a foreign power, it is arguable that a warrant would not have been re- quired for interception. See Part V, Supra. Despite this, the defendants' argument overlooks the fact that the FBI reguested NSA to supply the Bureau with any information about Jabara which came into NSA's possession in the course of its foreign intelligence activities. Thus, 67 while the impetus for intercepting the communications in question may not have been Jabara's activities, Jabara clearly was the target of this intelligence activity insofar as it was the FBI's request which caused Jabara's communica- tions to be targeted for transmission to and examination by the Bureau. This, the Court believes, is a clear violation of Jabara's fourth amendment rights regard- less of whether he or an agent or colla- borator of a foreign power was the target of the nia. Therefore, the Court is of the opinion that the defendants have failed to produce and could not pro- duce any evidence which would establish that the transmission and examination of 12 There is nothing in the record to suggest that any impetus for the trans- mission and subsequent examination of these summaries existed other than the fact that Jabara was a participant in the communica- tions. 68 Jabara's communications was subject to the foreign agent or collaborator exception to the warrant requirement. Furthermore, any contention that a warrantless search directed at Jabara can be justified by the plaintiff's affilia- tions must fail in light of the Court's earlier finding "that its in camera review [of materials submitted by the government] has not revealed any evidence to estab- lish that the plaintiff or the domestic organization to which he belongs has been implicated in any way with a foreign agent or organization or acting in collaboration with a foreign power," Jabara v. Kelley, 75 F.R.D. at 493. Thus, it is clear to the Court that a fourth amendment violation has occurred. As noted above, the mode of interception employed by NSA does involve serious fourth amendment questions with respect to whether NSA surveillance alone violates a 69 person's reasonable expectations of privacy and is subject to the warrant requirement of the fourth amendment. How- ever, the examination of the contents of conversations thus intercepted would vio- late a persons' reasonable expectation of ST at and is tantamount to what has generally been referred to as an inter- ception in cases and statutes dealing with more traditional modes of electronic surveillance. Consequently, absent some recognized exception to the warrant re- quirement, the targeting of a person's conversations intercepted by NSA for summarization, transmission to, and sub- sequent examination by other agencies must be done pursuant to prior judicial author- ization akin to a warrant. Here no such 13 This is expecially true in this case where at least two of the communications in question were used for investigative lead purposes by the FBI. 70 exception exists. Jabara has not been shown to be an agent or collaborator of a foreign power and even if it were shown that such an agent or collaborator was the Other party to Jabara's intercepted communications, that circumstance would be irrelevant to the warrant requirement. Since the FBI's interest in Jabara led to the transmission and examination of the summaries in question, any applicable exception to the warrant requirement must be based on Jabara's status or identity. Accordingly, the plaintiff's motion for summary judgment with respect to this issue is granted. In view of the fact that Title III remedies apply to any interception requiring a warrant, see Zweibon, supra, the Court need not decide whether Title III was in fact violated in view of its holding that the Constitution 71 : 14 requires a warrant in these circumstances. VII THE PRIVACY ACT The plaintiff's eighth cause of action alleges that th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0783%3A1. Public record. Not legal advice.