Federal Court of Appeal rules on constitutionality of content preservation

In a recent decision of the United States Court of Appeals for the Ninth Circuit, United States vs. Rosenow, the court upheld the conviction of a man charged with sexual exploitation and possession of child pornography after Yahoo investigated several accounts suspected of being involved in such activity. The defendant, Carsten Igor Rosenow, asked for the evidence to be suppressed, 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 might think. This relatively simple opinion goes on, however, to decide — with a single paragraph of analysis — that the government’s preservation request regarding the contents of the defendant’s Internet account was not a seizure under the Fourth Amendment. Orin Kerr, a professor at the University of California, Berkeley School of Law, calls this part of the opinion ‘really, really bad’ for digital civil liberties.

Kerr is of the opinion that the rosenow The court was right about a lot of things, 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 in deciding the preservation issue without a full briefing, but it also got the question wrong.

In rosenow, the court took an argument of less than a page from the defendant’s brief and decided on the merits that the government’s requests to Yahoo to preserve records related to the defendant’s private communications were not a seizure under the Fourth Amendment. Reasoning that preservation neither demands nor “significantly interferes[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 ruled the claims unseized and constitutional under the Fourth Amendment.

Kerr’s qualms about the decision are twofold. First, he explains that the rosenow The ruling, the sole opinion of the federal appeals court on the constitutionality of content preservation claims, now authorizes the government to “at any time order any Internet service provider to disseminate a copy of anyone or even the entire contents of everyone’s account”. Kerr argues that this conflicts with major and, in his view, compelling arguments against this decision that were not presented in court since the matter was not fully briefed.

Second, Kerr argues that the holding offers remarkably wide latitude to the government. Below rosenow, the court found that the government’s preservation request did not significantly interfere with the defendant’s “possession interests in his digital data because they did not prevent Rosenow from accessing his account.” This, Kerr argues, citing his 2010 article on the subjectwould allow the government to seize and copy all kinds of accounts and information, as long as the government returns the device to the owner, without running afoul of the Fourth Amendment.

For journalists, such a move could potentially allow the government to force a third-party communications provider to copy a person’s personal data, search history, computer content, email logs, or location information. journalist, as long as it does not interfere with the journalist’s access to such information. Account. Below Kerr’s analysis, he could allow police at protests to take, copy and return a journalist’s camera, computer or phone without constitutional problems. It’s not hard to imagine the chilling effect a flat “no seizure” rule on content preservation requests could have on freedom of the press.

Kerr offers a short en banc rehearing solution – amend the opinion and delete the section deciding the preservation issue. This, he argues, would not change the outcome of rosenow and would save “those critical and new legal issues” to be fully informed and decided in another case.

We will provide updates on this story as it happens.


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

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