The US Ninth Circuit Court of Appeals on Wednesday upheld the 2019 conviction and conviction of Carsten Igor Rosenow for child sexual exploitation in the Philippines – and in doing so, the court may have dug a huge hole in Internet Privacy Law.
The court appears to have given US government agents permission to copy anyone’s Internet account data without reasonable suspicion of wrongdoing – despite Fourth Amendment protections against unreasonable search and seizure. Orin Kerr, a professor at UC Berkeley School of Law, noted the decision with dismay.
“Holy shit: although it was barely mentioned in the briefing, CA9 just held in a single sentence, in a precedent notice, that preservation of Internet content is not seizure,” he said. -he writes in a Twitter post. “And TOS [Terms of Service] eliminate all privacy on the Internet.”
The case in question, United States vs. Rosenowbegins in October 2014, when online money transfer service Xoom alerted Yahoo! to a number of Yahoo accounts involved in buying and selling child pornography. The convicted felon was previously a marketing director for biotech company Illumina.
yahoo! investigated, reported his findings to the National Center for Missing and Exploited Children (NCMEC) and later implicated the Federal Bureau of Investigation (FBI) and the Department of Homeland Security (DHS).
Law enforcement submitted preservation requests to Yahoo! to maintain relevant user account data in October 2014, December 2014 and June 2015. Included were three financial transactions involving Rosenow.
Surveys by Yahoo! and continued enforcement, culminating in the arrest of Rosenow on June 21, 2017, at the San Diego airport, concurrent with the execution of federal search warrants for the accused, his baggage and his residence. Authorities seized digital images and video files as evidence. Rosenow in 2020 was sentenced to 25 years in prison for child pornography offences.
Lawyers representing Rosenow sought to have evidence obtained during the arrest thrown out, claiming that their client’s Fourth Amendment rights had been violated. They argued that Rosenow had the right to privacy of its digital data. The government preservation requests — issued years before — and subpoenas submitted without a warrant, they said, violated Fourth Amendment protections against unreasonable search and seizure.
The appeal panel rejected the defense arguments and upheld the conviction and sentence of the lower court.
The Ninth Circuit decision [PDF] claims that the government’s data preservation requests did not infringe the defendants’ rights because the data was copied and the defendant was not deprived of it – there was no seizure.
“It should also be noted that Rosenow consented to ESPs [electronic service providers] honor requests for preservation by law enforcement under the ESP Terms of Service,” the decision explains. “Thus, we agree with the district court that these demands did not constitute an unreasonable seizure in violation of the Fourth Amendment.
Some people have nightmares
Kerr described the decision as the nightmare scenario of case law — a major issue that is glossed over during the proceedings and decided without any reasoning or legal support.
“Literally, that’s it,” he wrote of the ruling’s terse dismissal of Fourth Amendment concerns. “No analysis. No quotes. No discussion. And just one sentence. So now, under 9th Circuit law, the government is free to order the copying and holding of everyone’s entire internet account – for no reason. At any time. , for no reason.”
Kerr recently explored how Internet data preservation orders can circumvent Fourth Amendment requirements in an article titled “The Fourth Amendment Limits of Internet Content Preservationwhich appeared last year in the St. Louis University Law Journal.
In it, he describes a hypothetical scenario that affects not only the Rosenow case, but also anyone storing data with a service provider.
The punchline is that it’s not about a hypothetical scenario but about how “18 US Code § 2703 – Mandatory disclosure of customer communications or records actually works. And it happens often: In 2019, more than 310,000 internet accounts were retained in response to 2703(f) requests, according to Kerr.
What is at issue here is whether the government can circumvent Fourth Amendment obligations by delegating unsupported data preservation requests — effectively seizure — to the private sector.
“When the government requests preservation and the provider complies, the provider acts as an agent of the government and becomes a state actor,” Kerr writes in his article. “The process of copying and setting aside content from an Internet account is a seizure of the Fourth Amendment because it interferes with a user’s right to control their private communications.”
In other words, the authorities must have probable cause before seizing your data or ordering a third party to do so for them, just as they should do to seize parcels sent by post. But for the ninth circuit, and now for the courts of its jurisdictionthis no longer appears to be the case.
The court’s reasoning that agreeing to the terms of service nullifies the right to privacy has raised concerns among other legal experts.
In a statement emailed to The registerJennifer Lynch, director of surveillance litigation for the Electronic Frontier Foundation, said the Ninth Circuit’s discussion of Rosenow’s Fourth Amendment rights with respect to her ISP’s Terms of Service was clearly flawed.
“The Supreme Court and every other court that has considered the issue has made it clear that digital content you store with a third party is protected by the Fourth Amendment. Third parties who store and transmit our content and communications all have terms of services similar to Yahoo.”
“These take-it-or-leave-it terms that no one reads are designed to protect the commercial interests of corporations — they cannot vitiate your Fourth Amendment rights. If they did, cases like Carpenter and United States vs. Warshak (a 2010 Sixth Circuit case finding that the Fourth Amendment protects email) would have no teeth, and it cannot be true.”
Lynch said the EFF has raised this issue in several previous court cases and expects to address it before the Ninth Circuit in a case called United States vs. Bohannon next month in May. ®