Block on Trump's Asylum Ban Upheld by Supreme Court
In 2011, Homeland Security received an anonymous tip that someone was trying to help an Iranian company obtain relays for an Iranian power project. The source shared an email from that person, which contained a phone number. Homeland Security searched for this number in its secret database and found a match for a number in Los Angeles.
They searched for more information in their database, finding that the suspect -- Shantia Hassanshahi -- had been investigated before for violating the Iranian trade embargo. More investigations resulted in Hassanshahi being detained at LAX in 2012, during which time his laptop was seized and he was questioned.
Fruit of the Poisonous Secret Database
Hassanshahi argued before the D.C. District Court that the evidence found on his laptop, revealing a bunch of embargo violations, should be suppressed, as the initial search of the secret database was unconstitutional. Why? Because he claims the secret database was the NSA's bulk surveillance program, which was called into question by Judge Richard Leon. His number was entered into the database through an unconstitutional process, ipso facto, unconstitutional search, and fruit of the poisonous tree.
While the government doesn't really want to say what it consulted to find Hassanshahi's phone number, it says that all you need to know is the database wasn't the one at issue in the NSA bulk surveillance program. Even so, it suggests that the court should actually presume that the "mysterious law enforcement database" is unconstitutional. (It did this because it refused to provide any information to the court about the database and wanted the court to decide the issue on other, more analog, grounds.)
Even though the court found that, but for the search of the database, law enforcement wouldn't have thought to pull Hassanshahi aside at LAX and search his laptop, there were still other reasons to uphold the search. Applying the doctrine of attenuation, the court said there was a pretty slim connection between searching the database -- which revealed only Hassanshahi's phone number -- and the ultimate search. This was due to intervening investigative steps, including subpoenaing Google for information about the phone number, which was a Google Voice number.
The upshot of these intervening steps is that they, not the search of the database, provided more information, both quantitatively and qualitatively, than the initial search. The existence of the phone number in the mystery database "at most, 'tipped off the [G]overnment ... to the probable identity of the perpetrator."
The court was unable to finalize its analysis, which would require looking into the "flagrancy" of the violation, because the government refused to provide any information about the database in question. "With so many caveats, the Government's litigation posture leaves the Court in a difficult, and frustrating, situation," the court said.
We'll have to wait to see what happens in other NSA cases, including those at the Ninth Circuit, but for now, it appears that the government has learned it can get away with investigations based partly on its secret databases so long as it refuses any information about those databases to anyone -- even a court.
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