case law update

Incidental Seizure of Emails between Foreign National and Defendant Did Not Violate Fourth Amendment Rights

The Court of Appeals for the Ninth Circuit recently found that an individual’s Fourth Amendment rights were not violated when his communications with an overseas foreign national were incidentally intercepted.

In 2009, Mohamed Osman Mohamud began communicating over the Internet by email with Samir Khan, a United States citizen living in North Carolina at the time. Khan published articles in Jihad Recollections, an online magazine aimed at English-speaking al-Qaeda supporters. From February to August 2009, Mohamud and Khan exchanged roughly 150 emails and discussed Islamic law and Mohamud’s support for Osama bin Laden.

During the time period of Mohamud’s communications with Khan, Mohamud wrote 4 articles for Jihad Recollections. The articles recommended that supporters engage in physical exercise to prepare for a war with the West and analyzed Europe’s vulnerability to a jihadi attack. Some of these articles originally included more activist language, which Khan removed from final versions. On August 15, 2009, Mohamud informed Khan he would no longer write for Jihad Recollections.

In 2009, Mohamud also struck up a relationship with Amro Al-Ali, a Saudi citizen who Mohamud met at a Portland, OR mosque and who subsequently left the United States. On August 31, 2009, Al-Ali sent information to Mohamud about an Islamic school in Yemen. Mohamud then called his father and told him he was leaving the United States. When his parents could not reach him, they called the FBI and asked an agent to stop Mohamud from leaving the country. Eventually, Mohamud’s mother got in touch with him and brought him home.

From the information revealed by Mohamud’s parents, the FBI was able to identify Mohamud as the user of the email account that exchanged messages with Khan. The FBI then opened an investigation into Mohamud.

On June 23, 2010, an undercover agent under the alias “Youssef” emailed Mohamud. On July 30, 2010, Youssef and Mohamud met for the first time. Youssef asked Mohamud what he would do for the “cause,” and Mohamud stated he would “become operational.” Mohamud explained “operational” meant “doing like the other brothers do when they get a car, fill it with explosives, park it near a target location, and detonate the vehicle.”

On August 19, 2010, Youssef met with Mohamud again and introduced him to “Hussein,” another undercover agent. After about 30-40 minutes, Mohamud told the agents that he wanted to detonate a bomb in Pioneer Courthouse Square during the annual Christmas Tree Lighting Ceremony on November 26, 2010. 

Between September and November 2010, the agents gave Mohamud $2,800 to carry out specific tasks, which Mohamud completed. The agents then detonated a test bomb in the Oregon countryside in early November 2010. Mohamud subsequently made a “good-bye” video and provided it to the agents.

On November 26, 2010, Mohamud, Youssef, and Hussein drove a van to Pioneer Courthouse Square. Before exiting the van, Hussein told Mohamud to connect the wires for the detonator to work, which Mohamud did. Mohamud then joined Youssef and Hussein and entered another car. Mohamud pulled out a cellphone while Hussein read him a number to dial to detonate the bomb. When Mohamud dialed the number, nothing happened. Hussein instructed Mohamud to exit the car for better reception – the arrest signal. At that time, Mohamud was arrested by FBI agents.

Mohamud was indicted on one count, the attempted use of a weapon of mass destruction. While Mohamud raised the defense of entrapment, the government countered that Mohamud’s actions before any contact with the FBI proved that he had the necessary predisposition to commit the crime. The jury returned a guilty verdict rejecting Mohamud’s defense.

Mohamud then challenged his convictions on numerous grounds. After the verdict, but before sentencing, the government filed a supplemental notice that it offered into evidence information derived from information collected pursuant to § 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA). Mohamud made several arguments for suppression, including that § 702 violates the Fourth Amendment. The District Court disagreed. Mohamud appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.

According to the Court of Appeals, the initial collection of Mohamud’s email communications did not involve any targeting of Mohamud under § 702, the retention and querying of incidentally collected communication, or any more confrontational methods of collecting information. Rather, the case involved the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected. Confined to these particular facts, the Court held that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment.

The Court of Appeals explained that “the Fourth Amendment does not apply to searches and seizures by the United States against a non-resident alien in a foreign country.” Therefore, the government’s monitoring of the overseas foreign national’s email fell outside the Fourth Amendment. Mohamud contended that the location of the search matters, and that the searches took place in the United States. The Court rejected this argument and stated “what matters here is the location of the target.” Mohamud also contended that his communications were not merely incidental, as the monitoring of communication between foreign targets and U.S. persons was anticipated. However, the Court again disagreed with Mohamud, stating that the fact the government knew some U.S. persons’ communications would be swept up does not make this collection any more unlawful.

Assuming that Mohamud had a Fourth Amendment right in the incidentally collected information, the Court found that the search here was reasonable under the Fourth Amendment. To decide reasonableness, courts look at the totality of the circumstances and weigh the government’s interest in the search with the defendant’s privacy interest in the material searched. The government’s interest in combating terrorism is an “urgent objective of the highest order.” With respect to Mohamud’s privacy interest, the Court treated the emails as letters. As with letters “a person’s reasonable expectation of privacy may be diminished in transmissions over the Internet or e-mail.” As such, Mohamud’s interest in the privacy of his communications is diminished.

Therefore, the Court of Appeals affirmed the District Court’s decision, as “the government’s surveillance, investigation, and prosecution of Mohamud were consistent with constitutional and statutory requirements.”

Read the full case: United Stated v. Mohamud

 


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: Fourth Amendment, fourth amendment right, fourth amendment violation

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