Federal appeals court decides constitutionality of content preservation in one paragraph

In a recent decision by the U.S. Court of Appeals for the Ninth Circuit, United States v. Rosenow, the court affirmed the conviction of a man charged with sexual exploitation and possession of child pornography after Yahoo investigated several accounts it suspected were involved in such activity. The defendant, Carsten Igor Rosenow, moved to suppress the evidence, arguing that Yahoo (and Facebook) were state actors when they investigated his account, and that the subsequent searches of his electronic devices were unconstitutional. The court disagreed.

Case closed, one would think. This relatively straightforward opinion continues, however, to decide — with only one paragraph of analysis — that the government’s preservation request with respect to the defendant’s internet account contents was not a seizure under the Fourth Amendment. Orin Kerr, a professor at the University of California, Berkeley School of Law, calls this portion of the opinion “really, really bad” for digital civil liberties.

Kerr opines that the Rosenow court got a lot right — namely that compliance with the Stored Communications Act does not make providers like Facebook and Yahoo state actors. However, he argues that not only did the court bite off more than it could chew by deciding the preservation issue without full briefing, it also got the question wrong.

In Rosenow, the court took a less than one-page argument from the defendant’s brief and decided on the merits that the government’s requests that Yahoo preserve records related to the defendant’s private communications were not a seizure under the Fourth Amendment. Reasoning that the preservation requests neither “meaningfully interfere[d] with Rosenow’s possessory interest in his digital data … [n]or did they provide the government with access to any of Rosenow’s digital information without further legal process,” the court held the requests to be a non-seizure and constitutional under the Fourth Amendment.

Kerr’s qualms with the ruling are two-fold. First, he explains that the Rosenow decision, the only federal court of appeals opinion on the constitutionality of content preservation requests, now authorizes the government to “at any time order any Internet provider to run off a copy of anyone or even everyone’s entire account contents.” Kerr argues that this conflicts with major, and in his opinion, persuasive, arguments against this holding that were not presented to the court since the issue was not fully briefed.

Second, Kerr argues the holding provides remarkably broad latitude to the government. Under Rosenow, the court found the government’s preservation request did not meaningfully interfere with the defendant’s “possessory interests in his digital data because they did not prevent Rosenow from accessing his account.” This, Kerr argues, citing his 2010 article on the subject, would authorize the government to seize and copy all sorts of accounts and information, so long as the government returns the device to the owner, without running into the Fourth Amendment.

For reporters, such a ruling could potentially authorize the government to force a third party communications provider to copy a reporter’s personal data, search history, computer contents, messaging logs or location information, so long as it does not interfere with the reporter’s access to that account. Under Kerr’s analysis, it could authorize police at protests to take, copy and return a reporter’s camera, computer or phone without constitutional problems. It is not hard to imagine the chilling effect a flat “no-seizure” rule with respect to content preservation requests could have on press freedom.

Kerr proposes a solution short of rehearing en banc — amend the opinion and remove the section deciding the preservation issue. This, he argues, would not change the outcome of Rosenow and would save “these critical and novel legal issues” to be fully briefed and decided in another case.

We will provide updates on this story as they come.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.