UNITED STATES V. MOHAMUD
49
accountability within the Executive Branch’ and provide ‘an
internal check on Executive Branch arbitrariness.’” (citation
omitted). However, as described above, § 702 differs in
important ways from traditional FISA, and a mechanism that
might provide additional protections above and beyond those
already employed in a traditional FISA context provides far
less assurance and accountability in the § 702 context, which
lacks those baseline protections. See also Clapper, 133 S. Ct.
at 1144–45.
Accordingly, although we do not place great weight on
the oversight procedures, under the totality of the
circumstances, we conclude that the applied targeting and
minimization procedures adequately protected Mohamud’s
diminished privacy interest, in light of the government’s
compelling interest in national security.
In sum, even assuming Mohamud had a Fourth
Amendment right in the incidentally collected
communications, the search was reasonable. Thus, we hold
that the application of § 702 did not violate the Fourth
Amendment under the particular facts of this case.28
28
We also agree with the district court that the FISC survives
separation of powers and non-delegation challenges, as FISC review of
§ 702 surveillance applications does not “interfere[] with the prerogatives
of another branch of government beyond requiring the executive branch
to conform to the statute,” and is “central to the mission of the judiciary”
as it is similar to “the review of search warrants and wiretap applications.”
See Mistretta v. United States, 488 U.S. 361, 388 (1989). Further, we
agree with the district court that FISC opinions are not advisory because
the FISC either approves or denies the requested acquisition (and
electronic communication service providers must follow the directives or
challenge them). See 50 U.S.C. § 1881a(h), (i)(2). Finally, the district
court correctly rejected Mohamud’s First Amendment challenge, as
motions to suppress based on First Amendment violations are analyzed
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