The first issue is whether the Magistrate Judge, who issued the warrant which the Government used to obtain the defendant's emails, would have found Probable Cause, has the affidavit filed in support of the warrant disclosed that the veracity of the unsigned document relied upon was in dispute, and that it had been discredited. The validity of a Turkish "police report," posted anonymously to the Internet, which has been questioned in several quarters, as being politically motivated, should have been included, according to the defense letter.
The second issue is whether a recent decision, issued by the Second Circuit Court of Appeals, which hears SDNY cases, bars the recovery of electronic information stored overseas, even if the the warrant is based upon a US-based Internet Service Provider (ISP). The case styled Matter of Warrant in Search of Certain E-Mail Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2nd Cir. 2016) holds that the territorial reach of the Court does not exceed the Federal Judicial District, according to the defense interpretation of the decision.
So that no discovery under the Court's present Protective Order will be inadvertently disclosed to the public, attorney Dinh stated that he sent a copy of his proposed motion directly to Chamber, for prior judicial review, together with the letter. The letter was filed on Friday, October 28, 2016, and the issues it presents should certainly be addressed by the Court.
* Viet Dinh, while in government service, had a major role in the drafting of the USA PATRIOT Act.