in the course of

Definition

HOLDING AND REASONING: (Matheson, J.) No. Section 702 allows the government to require American telecommunications-service providers to give the government emails or other communications to, from, or about a target person who is not a United States person and is located abroad. Under § 702, the Foreign Intelligence Surveillance Court preapproves intelligence-agency procedures for collecting such information as to non-United States persons living abroad as a group. The government is not required to seek any additional approval before surveilling a specific target. Section 702 surveillance does not violate the Fourth Amendment’s warrant requirement because the Fourth Amendment does not apply to foreign persons located outside the United States. If, lawfully surveilling a foreign person’s communications, the government incidentally collects communications to or from a United States person, that collection also does not violate the Fourth Amendment’s warrant requirement. The plain-view exception applies. The government is lawfully collecting the foreign target’s communications, and while doing so, the United States person’s communications are in plain view. Intelligence agencies are not expected to ignore evidence they come across during lawful surveillance. Additionally, the statutory limitations surrounding § 702 prevent the government from improperly using § 702 surveillance to conduct general exploratory searches. Section 702 surveillance must be targeted to acquire foreign-intelligence information. Further, preclearance from the Foreign Intelligence Surveillance Court requires targeting and minimization procedures that prevent the government from intentionally targeting United States persons and safeguard against the misuse of gathered information. Here, the government’s approval to surveil Muhtorov under FISA was obtained based on communications between Muhtorov and a foreign target that were discovered during the government’s lawful § 702 surveillance of the target. The incidental collection of Muhtorov’s communications did not violate the Fourth Amendment’s warrant requirement, because the plain-view exception applied. The FISA approval based on those communications is thus not tainted by a Fourth Amendment violation, and the evidence collected under that approval is admissible. The district court’s judgment is affirmed.