46
UNITED STATES V. MOHAMUD
United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir.
2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190
(2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th
Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would
lose a legitimate expectation of privacy in an e-mail that had
already reached its recipient; at this moment, the e-mailer
would be analogous to a letter-writer, whose ‘expectation of
privacy ordinarily terminates upon delivery’ of the letter.”
(citation omitted)).
It is true that prior case law contemplates a diminished
expectation of privacy due to the risk that the recipient will
reveal the communication, not that the government will be
monitoring the communication unbeknownst to the third
party. See, e.g., United States v. Miller, 425 U.S. 435, 443
(1976); United States v. White, 401 U.S. 745, 752 (1971);
Hoffa v. United States, 385 U.S. 293, 302 (1966). While
these cases do not address the question of government
interception, the communications at issue here had been sent
to a third party, which reduces Mohamud’s privacy interest at
least somewhat, if perhaps not as much as if the foreign
national had turned them over to the government voluntarily.
See also Hasbajrami, 2016 WL 1029500 at *11 & n.18
(observing same distinction).
Thus, Mohamud’s interest in the privacy of his
communications received by the overseas foreign national is
diminished.
iii. Privacy Protecting Measures
An important component of the reasonableness inquiry is
whether the FISC-approved targeting and minimization
measures sufficiently protect the privacy interests of U.S.
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