Case Summary and Outcome

The U.S. Court of Appeals for the Ninth Circuit upheld an Oregon District Court ruling that the incidental collection of a U.S. citizen’s activities online under Section 702 of the Foreign Intelligence Surveillance Act (FISA) did not violate the Appellant’s Fourth Amendment rights protecting a citizen from unreasonable search and seizure. The Appeals Court also held that the District Court properly rejected the Appellant’s entrapment defense.

The monitoring a foreign national’s email account from inside the U.S. revealed emails between the foreign national and the Appellant, Mohamed Osman Mohamud which led the government to obtain a FISA warrant to monitor the defendant’s account. The FBI subsequently carried out an undercover operation in which they arranged for Mohamud to believe he was to detonate a bomb at the Portland Christmas tree lighting ceremony.

The Court reasoned that because the collection of Mohamud’s communications was incidental to lawful surveillance of a foreign national outside the U.S. under Section 702 which surveillance was outside the scope of the Fourth Amendment, there was no violation of Mohamud’s Fourth Amendment rights either on the incidental collection of emails or when it used the emails to obtain an FISA warrant to surveil Mohamud and his activities.

Facts

Mohamed Osman Mohamud, the Defendant/Appellant in this case, was a Somalian-born naturalized U.S. citizen who had migrated with his parents to the Portland area at the age of three. In 2008, after a run-in with security at London-Heathrow airport, which he believed to be the result of racial and religious profiling, Mohamud began to express an interest in jihadist ideas, as evidenced by his reference to the “evil zionists” in London, his call to Allah for Islamic fighters to destroy them and a new email account, truthbespoken@gmail.com, from which he sent messages which became significant in the U.S. Government’s case against him.

In 2009, Mohamud used his truthbespoken@gmail.com account to correspond with Samir Khan – a U.S. Citizen, later killed in a drone strike in Yemen, who published an online English-language magazine aimed at U.S. al-Qaeda supporters called Jihadist Recollections. Over the course of about 7 months, Khan and Mohamud exchanged about 150 emails, and Mohamud wrote four articles for Jihadist Recollections. Later in 2009, he told his parents that he would be leaving to go to Saudi Arabia. After trying, but failing, to persuade him to stay in the U.S. , Mohamud’s parents contacted the FBI in August 2009. Mohamud never left the country, but the FBI did open an investigation on him.

In November 2009, an FBI agent contacted Mohamud at truthbespoken@gmail.com and carried out a brief correspondence. In June 2010, another FBI agent, going by the name of Youssef contacted Mohamud. Over the course of a long correspondence, Youssef and Mohamud set up a meeting, at which point Youssef asked what Mohamud was “willing to do for the cause”. Mohamud responded that he planned to “wage war” within the U.S., but dreamt of going abroad for training. Youssef presented him with several options ranging from regular prayer to martyrdom, and asked Mohamud which he preferred. Mohamud immediately said that he preferred to “become operational” for the cause.

Over the course of several meetings, with the assistance and support of Youssef and another undercover FBI agent, Mohamud devised a plan to “become operational” by detonating a bomb during a crowded Christmas gathering in Portland. Youssef and the other FBI agent provided the equipment, the training, and financial support, but Mohamud devised the plan, and did not back down even when Youssef informed him that innocent children, among others, would likely be killed.

The FBI agents provided Mohamud with a fake bomb and a fake cellphone ‘detonator’. Mohamud went through with the attack, to the point where he actually attempted to detonate the bomb. He was then arrested, tried, and convicted for attempting to detonate a large bomb during the Christmas ceremony. After his conviction the government disclosed that it had used surveillance under Section 702 of the FISA Amendments Act, which allows warrantless monitoring of a foreign national’s email account from inside the U.S., to collect and search Mohamud’s email.

Mohamud appealed his conviction to the Ninth Circuit Court of Appeals on the grounds that the FBI’s warrantless monitoring of his online activity for over one year prior to initiating a meeting constituted an unlawful “search” in violation of the Fourth Amendment to the U.S. Constitution. He also appealed the lower court’s finding that the entrapment defense did not apply.

Decision Overview

Judge Owens delivered the opinion for the Ninth Circuit Court of Appeal. The Court rejected Mohamud’s entrapment argument after weighing the five-factor test set out in United States v. McClelland, finding that even if the government had participated in inducing him to commit the crime, the “reluctance” factor weighed so heavily against Mohamud that he could not rely on the the defense of entrapment.

The Court then turned to the Fourth Amendment arguments, which were based on the fact that the Government used information collected from Mohamud’s emails over the course of more than a year, but obtained the initial warrant to monitor Mohamud as a result of a warrantless monitoring of a foreign national. Rejecting the argument that the Government needed a warrant, the Ninth Circuit said that the Government’s actions were authorised by the 2008 amendments to FISA allowing it to keep foreign nationals abroad under surveillance so long as court-approved targeting and minimization procedures were in place.

The Court further found that the initial collection of Mohamud’s email communications did not involve the more controversial methods of collecting information such as “upstreaming” or targeting him or the retention and querying of incidentally collected information. Instead, the Court said, that all the case involved was the targeting of a foreign national under Section 702 through which Mohamud’s email communications were incidentally collected.

In respect of his privacy interest, the Court found that Mohamud’s voluntary disclosure of information to a third party had reduced his expectation of privacy. It also upheld the District Court’s finding that the applicable targeting and minimization procedures were reasonable,  followed in practice and sufficiently protected Mohamud’s privacy interest.

Accordingly the Court found that the Government carried out a lawful search under FISA; the incidental interception and collection of Mohamud’s communications with a foreign national was authorized and lawful under Section 702 and no violation of the Fourth Amendment occurred. Mohamud’s conviction was therefore upheld.