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An attorney for the United States government contended CIA-backed contractors had not violated the privacy rights when they allegedly opened the physical structure of cellphones belonging to Americans, who visited WikiLeaks founder Julian Assange in the Ecuador embassy in London.
“There are several cases,” U.S. Attorney Jean-David Barnea argued, “that say that by giving your phone to someone else, you have relinquished your expectation of privacy.”
The assertion was made during a remarkable hearing in the U.S. District Court for the Southern District of New York on November 16. The hearing involved argument over a motion to dismiss a lawsuit against the CIA and former CIA director Mike Pompeo for their alleged role in spying on Assange visitors that were Americans.
In August 2022, four Americans sued the CIA and Pompeo: Margaret Ratner Kunstler, a civil rights activist and human rights attorney; Deborah Hrbek, a media lawyer who represented Assange or WikiLeaks; journalist John Goetz, who worked for Der Spiegel when the German media organization first partnered with WikiLeaks; and journalist Charles Glass, who wrote articles on Assange for The Intercept.
Glass, Goetz, Hrbek, and Kunstler alleged that they were required to “surrender” their electronic devices to employees of a Spanish company called UC Global that the Ecuador government hired to provide security for the embassy.
On June 4, the Spanish newspaper El País reported that UC Global director David Morales had a folder on his laptop marked “CIA.” (Both UC Global and Morales were also sued by Glass, Goetz, Hrbek, and Kunstler.)
In 2019, according to testimonies and documents to which El País obtained, the media organization revealed that UC Global contractors had “opened up and photographed the cellphones of American journalists.”
“Their visits were monitored, the video and audio were recorded, and reports about the conversations were drawn up and were sent to the server in Jerez de la Frontera, to which the CIA allegedly had access.”
El País additionally detailed how reports were compiled on Americans who visited Assange and were designated “priority targets.” The reports included the meeting date, a copy of their passport, content from their conversation with the WikiLeaks founder, and a video of the meeting.
“On some occasions,” the newspaper found that UC Global contractors had opened “the casing of their cellphone in order to locate and photograph its International Mobile Equipment Identity (IMEI) number, a unique code that identifies a device and is one of the most valuable pieces of information for anyone looking to hack a phone. When a cellphone connects to a network, this identity number is automatically transmitted.”
During the hearing, the U.S. government maintained that it was constitutional for the CIA to obtain the IMEI number and other information from the “physical structure” of Americans’ cellphones without a warrant.
“Serial numbers, little cards that are inside your phone that may be what help your phone access cell phone service and the like” were not protected, Barnea said.
Barnea clarified that he was referring to SIM cards in cellphones, which telecommunications services rely upon to identify and authenticate subscribers.
“If the government were to download the contents [of] your SIM card, that would be different,” Barnea argued. “But if the government were to simply open up the SIM card slot and take a picture of it and take down the SIM card number, that is not something that requires a warrant, if you've voluntarily provided that phone to the government or to somebody else."
Brian Levenson, an attorney representing the Americans who claim their privacy rights were violated, pushed back on the notion that they gave up their privacy simply because they “voluntarily” handed over the electronic devices to embassy security.
“At the moment where the plaintiffs checked into the embassy and checked their devices, and provided their passport, the government in real time knew these were American citizens about to enter the room [with Assange],” Levenson stated. “[Americans] went in the room, and now they’re surveilling U.S. citizens without a warrant or without any reason. There is no reasonableness. These are not criminals.”
However, attorneys for the U.S. government have insisted that Assange was a "wanted fugitive" so any Americans meeting with him should have known that they could be potentially targeted with surveillance.
Assange faces extradition to the U.S. on Espionage Act charges for engaging in journalism by publishing U.S. government documents in 2010 and 2011. He has been jailed at Belmarsh prison in London for more than four and a half years.
The U.S. government has repeatedly argued that the court should view the UC Global contractors as they would U.S. police. They also appear to suggest that if security for a foreign embassy demands access to an American’s electronic device then there is nothing wrong with the CIA asking that embassy to share information with them from that device.
“There was no search for Fourth Amendment purposes when plaintiffs’ passports and the exteriors of their electronic devices were allegedly inspected or photographed, as they voluntarily turned those items over to embassy security,” the government declared in their motion to dismiss the lawsuit [PDF].
What the government has not demonstrated is that the embassy security would have photographed American visitors’ electronic devices if the contractors had not been allegedly involved in a CIA-backed espionage operation.
As previously covered by The Dissenter, Judge John Koeltl questioned Barnea when he refused to confirm or deny that the CIA had targeted Americans without obtaining a warrant. He also invited attorneys for the Americans to update the lawsuit so that claims of privacy violations explicitly dealt with the government’s lack of a warrant.
“I don't believe that a warrant is ever required outside the United States,” Barnea declared during the hearing. “The Second Circuit [Court of Appeals] has held that the warrant requirement of the Fourth Amendment only applies within the United States.”
Effectively, the U.S. government asserted in a U.S. courtroom that Americans cease to have constitutional privacy protections from U.S. government intrusion when they travel abroad. They have no “reasonable expectation for privacy.”
But as the Americans allegedly targeted have claimed [PDF], “There [was] no expectation that the contents of electronic devices would be copied by the U.S. government.” If that was expected, journalists and attorneys would not have brought their electronic devices at all because they were not permitted in meetings with Assange.
There was no reason for American journalists or attorneys, who met with Assange, to “bring electronic devices to the embassy just to have their contents seized by the U.S. government.”