WIEDER AND GUARNIERI v. THE UNITED KINGDOM JUDGMENT
signed into law. The CLOUD Act amended the Stored Communications Act,
18 U. S. C. §2701 et seq., by adding the following provision:
“A [service provider] shall comply with the obligations of this chapter to preserve,
backup, or disclose the contents of a wire or electronic communication and any record
or other information pertaining to a customer or subscriber within such provider’s
possession, custody, or control, regardless of whether such communication, record, or
other information is located within or outside of the United States.”
48. Pursuant to the new law, the Government obtained a new warrant. As
no live dispute remained between the parties, the case became moot.
Following the Supreme Court’s established practice in such cases, on 17 April
2018 the judgment on review was vacated, and the case was remanded to the
United States Court of Appeals for the Second Circuit with instructions first
to vacate the District Court’s contempt finding and its denial of Microsoft’s
motion to quash, then to direct the District Court to dismiss the case as moot.
C. United States of America v. Agron Hasbajrami, United States Court
of Appeals for the Second Circuit, 18 December 2019
49. The appellant was arrested at John F. Kennedy International Airport
in September 2011 and charged with attempting to provide material support
to a terrorist organisation. After he pleaded guilty, the Government disclosed
that certain evidence involved in his arrest and prosecution primarily
electronic communications between the appellant and individuals without ties
to the United States and located abroad had been derived from information
obtained by the Government without a warrant pursuant to its warrantless
surveillance program under Section 702 of the FISA [Foreign Intelligence
Surveillance Act] Amendments Act of 2008. The appellant then withdrew his
initial plea and moved to suppress any fruits of the Section 702 surveillance.
The District Court denied the motion to suppress. The appellant again pleaded
guilty, reserving his right to appeal the District Court’s denial of his
suppression motion.
50. On appeal the appellant argued inter alia that the warrantless
surveillance and the collection of his communications violated the Fourth
Amendment. For section 702 surveillance the United States Government
could not “intentionally target” anyone located in the United States or a
“United States person” outside the United States (Title 50 United States Code
(“U.S.C.”) §§ 1881a(b)(1), (3)). Nor could it target a non-United States
person “if the purpose of such acquisition is to target a particular, known
person reasonably believed to be in the United States” (Title 50 U.S.C.
§ 188la(b)(2)).
51. The Court of Appeals held that the collection of the communications
of United States’ persons incidental to the lawful surveillance of non-United
States persons located abroad did not violate the Fourth Amendment and that,
to the extent that the Government’s inadvertent targeting of a United States’
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