40
UNITED STATES V. MOHAMUD
where a search was not directed at a U.S. person’s
communications, though some were incidentally swept up in
it—does not require a warrant, because the search was
targeted at a non-U.S. person with no Fourth Amendment
right.
The FISA Review Court in In re Directives Pursuant to
Section 105B of FISA, similarly applied this principle,
holding that “incidental collections occurring as a result of
constitutionally permissible acquisitions do not render those
acquisitions unlawful.” 551 F.3d 1004, 1015 (FISA Ct. Rev.
2008); see also United States v. Donovan, 429 U.S. 413, 436
n.24 (1977) (holding that a Title III wiretap warrant is not
made unconstitutional by “failure to identify every individual
who could be expected to be overheard,” but “the complete
absence of prior judicial authorization would make an
intercept unlawful”); United States v. Bin Laden, 126 F.
Supp. 2d 264, 280 (S.D.N.Y 2000) (explaining that “in the
Title III context, incidental interception of a person’s
conversations during an otherwise lawful surveillance” does
not violate the Fourth Amendment).
Mohamud and Amici23 urge us not to apply this
“incidental overhear” approach. First, Amici contend that
surveillance of U.S. persons’ communications under § 702 is
not “incidental” because the monitoring of communications
between foreign targets and U.S. persons was specifically
contemplated and to some degree desired. We agree that
such communications were anticipated. As the Privacy and
Civil Liberties Oversight Board found with respect to PRISM
collection, “[t]he collection of communications to and from
23
Amici are the American Civil Liberties Union, American Civil
Liberties Union of Oregon, and the Electronic Frontier Foundation.
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