It is no longer a secret that the United States military, and its various intelligence collectors are targeting Americans. Criminal defense lawyers should be especially keen to note that the ACLU has been fighting a case since 2014, where a Navy NCIS officer was wiretapping American citizens internet connections.
From the Electronic Frontier Foundation:
Military investigators with the Naval Criminal Investigative Service (“NCIS”) launched an investigation into online criminal activity by anyone in the state of Washington without limiting their search to military personnel or computers.
In United States v. Dreyer, a Naval Criminal Investigative Service (NCIS) officer stationed in Georgia believed he was entitled to conduct Internet surveillance of any computer within a specific jurisdiction and did not have to limit his monitoring to U.S. military or government computers or personnel. While monitoring computers in the state of Washington, he identified an IP address sharing child pornography, determined the IP address belonged to Dreyer, and passed that information along to local police who arrested Dreyer.
The problem? Dreyer, like most residents of Washington, was a civilian and had no connection to the military. The Posse Comitatus Act (PCA), a federal statute enacted in 1876, prohibits the military from investigating civilians and otherwise participating in civilian law enforcement activities.
In the district court, Dreyer unsuccessfully challenged the NCIS surveillance as a violation of the PCA, but a three-judge panel of the Ninth Circuit reversed. Noting this wasn’t the first time the NCIS had engaged in this sort of activity, the appellate court found the surveillance “extraordinary” and in clear violation of the PCA. Most importantly, the panel found that the evidence NCIS obtained should be suppressed. This is the first time a federal court has suppressed evidence obtained in violation of the PCA (a few state courts have suppressed PCA violations). The government asked the court to rehear the case but abandoned any argument that there was a PCA violation. Instead, the government merely urged the court to reconsider its decision to suppress the evidence. The Ninth Circuit agreed to reconsider, deciding to have the case argued again before an 11-judge en banc panel.