The Ninth Circuit's Stunner in Rosenow, and Thoughts on the Way Forward

A big problem in a small section, but one that can be corrected.

Two weeks ago, in United States v. Rosenow, the Ninth Circuit handed down a decision that has a brief but truly stunning passage with major implications for the future of Fourth Amendment law. If the passage stays in the opinion, it's going to have a quite dramatic effect, perhaps inadvertently, on how the Fourth Amendment applies to computers and the Internet.  And in my view, those effects are bad. Really, really bad. In this post, I want to say why the passage in Rosenow is so important, and why it's so disturbing.  And I'll suggest a possible path forward to deal with it.

I.  An Overview of the Rosenow Case

Rosenow arose out of an investigation into child exploitation in the Philippines.  Two large Internet providers, Yahoo and Facebook, ended up being involved.  That led eventually to Rosenow's arrest on his return from the Philippines to the United States and a search through his computers pursuant to a warrant. The search revealed child sexual abuse material (CSAM), also known as child pornography, including some involving sexual acts between Rosenow and prepubescent Filipina girls. On the basis of the images found on his computer, Rosenow was convicted of sexual exploitation and CSAM possession.

On appeal, Rosenow made several different arguments in his merits brief.  A majority of the merits arguments were on Fourth Amendment law.  The primary Fourth Amendment claim was that Yahoo and Facebook had become state actors, and that their accessing account information was a government search that triggered the Fourth Amendment.  But Rosenow also challenged other parts of the investigation, including the validity of the warrant obtained and whether accessing basic subscriber information was a search.

The Ninth Circuit affirmed in a published opinion by Judge Forrest, joined by Judge Callahan, with a partial dissent by Judge Graber.  The Court ruled that Facebook and Yahoo were acting as private actors, not state actors; that the warrants were valid, and that accessing basic subscriber information is not a search under the Fourth Amendment.  Judge Graber dissented in part as to one aspect of the state action ruling.

So far, this seems like an interesting decision, although on the whole relatively minor in its significance.  It's mostly fact-specific issues (such as where the state action line is) or else pretty clearly correct (such as the ruling that accessing basic subscriber is not a search).  It also has a lot I very much agree with, such as the specific ruling that the Stored Communications Act doesn't make Internet providers state actors.

But that's not all.  There's more. And that "more" turns out to be really big -- much bigger in its importance, I think, than everything else in the Rosenow opinion.

II.  The Stunning Passage in Rosenow

What is that really big thing?  In his merits brief, Rosenow claimed that a set of other practices, including the preservation of his Internet account contents, violated the Fourth Amendment.  The argument is less than a page of the brief, see page 64, and the only material specifically about preservation is a single sentence saying that the preservations were seizures.

To my great surprise, Rosenow's merits opinion took on those claims and rejected them on the merits. And because Rosenow is a published opinion, its holding is now binding in the Ninth Circuit. In the 45-page published opinion, here's the totality of the discussion of preservation and the Fourth Amendment:

Were the preservation requests unconstitutional seizures?

Acting pursuant to 18 U.S.C. § 2703(f), which requires an ESP "to preserve records and other evidence in its possession pending the issuance of a court order or other process," the government directed Yahoo on three separate occasions to preserve records related to Rosenow's private communications. Rosenow contends that these requests were an unconstitutional seizure of his property.

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow's digital information without further legal process. It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use. Thus, we agree with the district court that these requests did not amount to an unreasonable seizure in violation of the Fourth Amendment.

Yikes!

III.  Why the Passage Is So Important, and Why It's Really Bad.

Why is this passage so important?  There are two main reasons, I think.  The first is narrower, and the second broader.  Let me start with the narrower reason (although it's still pretty broad!).

First, as regular readers know, I think the Fourth Amendment makes most Internet content preservation unconstitutional.  You can see my full argument in this recent article of mine:  The Fourth Amendment Limits of Internet Content Preservation.  And you can see the argument fully written out as defense counsel might litigate it in this draft motion to suppress I recently wrote.  I think this is a hugely important issue, although it remained almost entirely unlitigated, much to my frustration.   No federal court of appeals has decided this issue until Rosenow.  The Ninth Circuit heard oral argument on this issue and had extensive briefing on it (with amicus oral argument participation, and briefing, from the ACLU) in United States v. Basey in 2019, but the panel did not reach the question in its decision.

For the Ninth Circuit to weigh in in this fashion when it wasn't fully briefed, and to reject these claims on the merits, is a big deal. It means that the government is free to pursue unlimited preservation, even though the major (and to my mind persuasive) arguments for why it shouldn't be able to do that have not been presented to the court that is saying this is permissible.

That's huge.  Under Rosenow, any government official can at any time order any Internet provider to run off a copy of anyone or even everyone's entire account contents.  The only authority on the question is now Rosenow, which rejects the claim. I think this is all wrong on the merits.  But more importantly, it's wrong on a vast scale: As explained in my article, there are hundreds of thousands of Internet preservations occurring every year.  This passage in Rosenow gives any government official a blank check to order any preservation of anyone or everyone's account without limit.  To decide this important a question in such a brief and unexplained passage is remarkable.

So that's the narrower (but again, pretty broad) problem.  Here's the even broader one.  The particular way that Rosenow rules for the government is incredibly far-reaching and deeply troubling.  Here's the key passage again:

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account.

This is a remarkably far-reaching ruling, and all in just two sentences.  Whether and when copying data is a Fourth Amendment seizure is one of the foundational questions of the future of Fourth Amendment law that has been in the background of the caselaw for years.  And it's also been a topic in scholarship for a long time, including stuff I have spent a lot of time on. As longtime readers may remember, in 2005 I initially concluded that copying wasn't a seizure.  By 2010, however, I had changed my mind, and I wrote an article explaining why copying ordinarily is a seizure, using preservation requests as an example: Fourth Amendment Seizures of Computer Data, 119 Yale Law Journal 700 (2010).

District courts have divided on the question.  And the one federal court of appeals ruling on it, which had held that copying is a seizure, was vacated when the court went en banc (presumably for reasons other than the seizure ruling, as there was a lot more going on in the case).  See United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (holding that the Government's retention of electronic copies of the defendant's personal computer "deprived him of exclusive control over those files," which was "a meaningful interference with [the defendant's] possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment."), vacated by United States v. Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc).  So until Rosenow, there was no circuit court precedent on this foundational question.

By ruling that copying is not a seizure, the Ninth Circuit becomes the first circuit court to have ruled on the question in a decision that is still on the books.  And the question is of dramatic importance, as the introduction to my 2010 article flags:

Imagine the police take away a suspect's computer, make a digital copy of its contents, and then give the computer back to the suspect. The police do not open the copy, but they keep it in their custody in case they need to access it later. Does the combined act of copying the files and retaining the copy trigger the Fourth Amendment?

Next imagine that FBI agents believe a particular person is using the Internet to commit a crime. Agents install a surveillance tool at the target's Internet service provider (ISP), and the tool generates copies of all of the target's incoming and outgoing email. The email is copied to a file, but no human being actually looks at the file. Instead, the agents keep the file in case they develop probable cause to look through it for evidence. Again, does the Fourth Amendment allow it?

The answer to both scenarios depends on whether copying computer files without looking at them constitutes a Fourth Amendment "seizure.  If copying a computer file amounts to a seizure, then the government cannot make and retain a copy absent special circumstances. On the other hand, if copying is not a seizure, then the government can make and retain the copy without restriction. The Fourth Amendment will limit looking through the copy because that is a Fourth Amendment "search. But what if the government wants to make a copy and hold it? Does that constitute a "seizure"?

Putting the preservation issue aside, a ruling that copying is not a seizure has extraordinary implications.  Whether you agree with that holding or disagree with it, I don't think it's a conclusion that is best reached in a precedential opinion in just two sentences.

And that's not all.  The Rosenow passage includes this sentence:

It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use.

What were those terms of use?  Earlier in the decision, the court notes a fairly standard term in its privacy policy, here Yahoo's, that Yahoo may disclose information "to investigate, prevent, or take action regarding illegal activities . . . , violations of Yahoo's terms of use, or as otherwise required by law."  I assume that's the term they had in mind.

I'm not entirely sure how to read that "note." But read fully, it seems to be suggesting that agreeing to terms of use governing an Internet account can eliminate Fourth Amendment rights.  In particular, the provider telling you in the fine print when you register the account that they might end up giving your data to the government in some situations is treated as forever blanket consent to that as a matter of Fourth Amendment law.

As a matter of Fourth Amendment law, I think that would be wrong, for reasons I argued here.  But it's also about as far-reaching as you can get.  If agreeing to standard terms of service is consent to a possible seizure, then presumably it is also consent to a possible search.  That would mean that Fourth Amendment rights online can be reduced to zero through a standard online term no one reads, and that users can't avoid, that were created just to make sure no one can sue the providers for complying with valid legal process.  I don't want to be apocalyptic, but this seems really really bad.

IV.  A Possible Way Forward

What are the prospects for further review?  En banc review is possible. Counsel for Rosenow has received an extension for a petition for rehearing, until June 8.  When the petition for rehearing is filed, it's possible that the court could want an en banc panel to take a look at the preservation issue, which could lead to a new opinion. And I would certainly support a full look at the preservation issue by the en banc court.

But there's also a narrower way, should the court not want to go en banc on this or another part of the case.  It seems to me that another way forward would be for the panel to just amend the opinion, only changing that passage, to say the issue will not be addressed because it was not fully briefed and was therefore waived.

Here's some context.  Under Ninth Circuit practice, an issue is deemed waived unless the appellant "specifically and distinctly argue[d] the issue in his or her opening brief." United States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005). The appellant has to specifically and distinctly raise the issue, and it then has to be "supported by argument" in the opening brief, for the Ninth Circuit to rule on it. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988).

As I read the opening brief, whether preservation is an unreasonable seizure was neither specifically and distinctly argued nor supported by argument in the opening brief.  Here's the full section from the opening brief:

The government's subpoenas and preservation requests were also illegal searches and seizures under Carpenter.

The recent Supreme Court case Carpenter v. United States, 138 S. Ct. 2206 (2018) also instructs that Rosenow had a legitimate right to privacy in his digital data, and that it violated the Fourth Amendment to interfere with that right without a warrant and probable cause. In Carpenter, the government obtained orders directing wireless carriers to provide cell-tower data regarding several criminal suspects. Id. at 2212. The Supreme Court reversed the resulting conviction, holding that warrantlessly obtaining this information violated the Fourth Amendment. In so doing, it rejected the notion that the third-party doctrine insulated this information from Fourth Amendment scrutiny, noting that thirdparty- doctrine cases did not deal with "confidential communications" and other private information. Id. at 2219. [FN158] The Court held that a warrant should have been required: "this Court has never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy" it observed. Id. at 2221 (emphasis provided). "If the choice to proceed by subpoena provided a categorical limitation on Fourth Amendment protection, no type of record would ever be protected by the warrant requirement." Id. at 2222.

Carpenter demonstrates that searches and seizures occurred here. The government seized Yahoo records through ongoing preservation requests, with no notice to Rosenow. And it both seized property and affirmatively prompted additional searches by issuing administrative subpoenas to Facebook. Under Carpenter, this should have required a warrant showing probable cause. Because the government had neither, this evidence should have been suppressed.

[FN158: Even the dissent seemed to concede that private communications—as opposed to mere location data—would not be governed by the third-party doctrine. See id. at 2230 (Kennedy, J., dissenting) ("Miller and Smith [the leading third-party cases] may not apply when the Government obtains the modern-day equivalents of an individual's own 'papers' or 'effects,' even when those papers or effects are held by a third party.") (citing Ex parte Jackson, 96 U. S. 727, 733 (1878) (letters held by mail carrier); United States v. Warshak, 631 F. 3d 266, 283-288 (6th Cir. 2010) (e-mails held by Internet service provider)).]

The claim here seems to be that, somewhere in the subpoenas and preservation requests, there were unreasonable searches and seizures.  Most of the passage seems to be arguing that the subpoenas were searches under Carpenter, a claim that in my view the Ninth Circuit properly rejected.

But here's the key.  As I read that passage, it doesn't seem to be separately and distinctly claiming that preservation is an unreasonable seizure, or offering a legal argument for why that might be.  The test for what is a seizure is not even mentioned. How the test might apply is not mentioned.  The test for the reasonableness of a seizure is not mentioned (much less applied) either, except to say that a warrant should have been required.  Compare that passage to the model brief I recently posted. It seems to me that the opening brief in Rosenow did not put the court on notice of the legal questions before it on the preservation issue.  You'd have to guess what the specific arguments were on the preservation issue, as the opening brief didn't flag them, much less make them.

I don't mean to criticize the hard-working counsel in the case. I believe Rosenow was the first case ever to get an opinion on the Fourth Amendment issues raised by preservation in the trial court decision.  To use an exam-grading analogy ('tis the season): The issue was spotted, unlike all the other cases where counsel have just missed it.  The opening brief raised a lot of issues, and went right up to the page limit, so it may not have been developed because of other issues in the case.  And I agree that the preservation issue was addressed in more detail in the Ninth Circuit reply brief.

But it seems to me that, if the court doesn't want to take this enormously important set of questions on en banc, it might be wise to amend the panel opinion to recognize that there's a lot more going on in the case than the panel realized given that the issue was not fully developed in the opening brief.  That would make no difference to the outcome. And it would just replace a single paragraph in the opinion, as the analysis paragraph would just become a waiver paragraph.  But it would mean that these critical and novel legal issues could wait for full briefing and decision in another case.

As always, stay tuned.

[UPDATE: I fiddled a bit with the post shortly after posting it.]

Comments

[Brett Bellmore]

"or else pretty clearly correct (such as the ruling that accessing basic subscriber is not a search)."

I understand the argument that accessing subscriber data on a platform isn't a search of the subscriber.

I've never understood, though, how it isn't a search of the entity maintaining the records.

[Michael P]

I think the key is the "basic subscriber information" aspect -- information that identifies the subscriber is not the same kind of information that would traditionally be part of the (4A-protected) "papers, and effects" belonging to a person. It identifies the subscriber, or aspects of their subscription that are not sensitive, rather than anything analogous to the original public understanding of the 4A's scope.

[Brett Bellmore]

But I think the subscriber information, no matter how basic, is part of the platform's "papers and effects". Sure, the police may be very sure you HAVE it, but they're still asking to look at it. And it's not out in plain sight, they're demanding it be produced.

Really, it just looks like an excuse to nibble at the edges of the 4th amendment, for convenience' sake.

[David Nieporent]

Let's assume — for the sake of argument — that you were right. How would that help the subscriber? He can't assert the platform's fourth amendment rights.

[Brett Bellmore]

No, but the platform can.

I expect such a doctrinal change wouldn't have a huge impact, as most platforms would voluntarily comply with requests, sparing the police the need to obtain warrants. Though some platforms might specialize in being stubborn about it, and the subscriber could help themselves in advance by their choice of platform.

But that doesn't mean the current 3rd party doctrine actually makes sense. I don't think it really does, regardless of the expected level of impact of abandoning it.

[Purple Martin]

That seems simple enough. You search for something you believe is there, perhaps are certain is there, but with no confirmation it's there.

On the other hand, you sieze, or embargo (such as a reporter's story), or place in escrow (don't know if that applies to something that isn't a physical object) something that's already provably there, without need to search it.

So, this isn't a search for CSAM that may be but is not provably among customer data provably held by by the company. It's just guardianship of the raw data to ensure it remains available if later meeting the standards for a legal search.

That defined, bounded datastore may then later be searched for CSAM under the controls applying to searches, but not seizures.

IANAL (obviously) so have no idea if that logic applied to the plain meaning of words, matches the logic of legal reasoning. But I imagine the principle is at least similar.

[Brett Bellmore]

Well, no, I think the command to not destroy the data IS, as Lee Moore suggests, more of a taking than a search. (So long as the government doesn't take actual custody!) And maybe de minimus if you were trying to put a monetary value on it. I was asking about 3rd party doctrine in terms of looking at stuff.

It's always struck me as a bit of sophistry that the 3rd party records aren't protected, as though the 3rd party doesn't have any 4th amendment rights.

[Milhouse]

Well, but do 4th parties have 3rd amendment rights?

[AmosArch]

Everytime there is a massive erosion of civil liberties its a safe bet 'think of the children' is somehow involved.

[Toranth]

Or just plain incomprehension on the part of politicians and judges.

I mean, technically, it is likely (depending on operating system and software) that the user was denied access to their files during the copying process - most systems use exclusive locks for these sort of things, to prevent data corruption.

Sure, it was only seconds long at most (depends on data size) and the user almost certainly didn't try to access their content during that time. But does that mean it would never be a seizure as long as the police return the files - even printed papers - before the own attempts to use them? I don't think that would fly.

[Lee Moore]

A "seizure" of property requires "some meaningful interference [by the government,] with an individual's possessory interests in [his] property." Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account.

This implies that the only aspect of property is the right to use it. Which is somewhat at odds with other traditionally accepted aspects of property, such as the right to exclude others from using it (if it is "excludable") and to dispose of it as you please, whether by sale, gift, or destruction.

Compelling a copy entirely negates the right of destruction, and so diminishes the property immediately - it makes the property indestructible by the owner. Further, it destroys the right to transfer exclusive use to another, by sale or gift.

[Stephen Lathrop]

Lee Moore, good points. To which I add that there are bits in the historical record to suggest at least some framers thought of an unwarranted government search as an injury in itself—without regard to what might later transpire legally.

[Davedave]

What nonsense. We are talking about preservation orders. A copy must be kept until a court rules on the matter, that's all. There is no 'seizure' going on at all.

[reasonableone1959]

I agree. A conclusion which is further supported by the fact that at least some of this information that the subscriber supposedly has a right to destroy was voluntarily placed on Facebook, at which point the owner voluntarily gave away the stick in the bundle of rights that he could have preserved. That is a far cry from his right to destroy information on his private computer or in a private email account. And going a step farther, in a divorce proceeding, it is illegal to transfer property out of a marital estate to defraud your spouse. In tax cases, it is illegal move assets or money out of the United States for purposes of "destroying" the wealth otherwise accessible to the IRS. Enjoining a third party from possibly destroying evidence created by a criminal suspect until a judge determines whether the government may or may not demand that evidence is hardly a violation of the suspect's due process rights.

[Stepped Reckoner]

You say, "voluntarily placed on Facebook". IANAL specializing in Fourth Amendment law, but doesn't this argument prove too much?

Suppose someone brings paper documents to a store like a FedEx Office store and asks the clerk for help in making 50 collated stapled copies of them; the clerk says of course and walks into the back of the store where the copying equipment is located. The customer says she'll I'll be right back and leaves to get a Starbucks latte next door. Unbeknownst to her, she is under law enforcement surveillance, and a plainclothes detective goes to the back room, shows the clerk a badge, and asks the clerk to make 51 copies, takes a copy, and leaves through the back before the customer returns for her 50 copies. The detective retains and preserves the 51st copy. Did the detective just conduct a search? I have not researched cases on this but intuitively it seems to me like this was a search. These papers were not discarded into a garbage bin. While they were voluntarily handed temporarily to the clerk, they were nevertheless handled in a way consistent with them being her valuable possessions: the clerk was only a bailee, obligated to keep the papers secure while they were briefly in his custody for the limited purpose of safely copying them.

[reasonableone1959]

I think your well thought out hypothetical is distinguishable. One places information on Facebook for the purpose of making it public. There is no such purpose in giving documents to a clerk to be copied. It is true that there are settings within Facebook that control just how public your posts are, but even at their most private, all of your "friends" can see it. I don't know in this case exactly what settings were used when incriminating information was shared to "Yahoo and Facebook," but even at their most restrictive I think this voluntary action constitutes giving up possession. And of course, this is just a secondary argument to the main argument - that the government's "seizure" of this information doesn't occur when they order Facebook to preserve it, but when they actually obtain it, and whether or not any subsequent seizure violates the suspect's 4th Amendment rights depends on whether his due process rights violated. If the government cannot obtain a warrant, they have to tell Facebook they can go ahead and destroy the information.

[Voize of Reazon]

Then you would be as unsatisfied with the judgment of California Bankers Assn. v. Shultz (1974) as was Justice Marshall, who wrote in his dissent

By compelling an otherwise unwilling bank to photocopy the checks of its customers, the Government has as much of a hand in seizing those checks as if it had forced a private person to break into the customer's home or office and photocopy the checks there. [...] Our Fourth Amendment jurisprudence should not be so wooden as to ignore the fact that through microfilming and other techniques of this electronic age, illegal searches and seizures can take place without the brute force characteristic of the general warrants which raised the ire of the Founding Fathers.

and

The fact that one has disclosed private papers to the bank, for a limited purpose, within the context of a confidential customer-bank relationship, does not mean that one has waived all right to the privacy of the papers. Like the user of the pay phone in Katz v. United States, who, having paid the toll, was "entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world," so the customer of a bank, having written or deposited a check, has a reasonable expectation that his check will be examined for bank purposes only—to credit, debit or balance his account—and not recorded and kept on file for several years by Government decree so that it can be available for Government scrutiny.

[Lee Moore]

There is no 'seizure' going on at all.

I'm not talking about seizures, I'm talking about the government purloining your property rights - ie I'm specifically criticising the court's glib remark :

"did not meaningfully interfere with Rosenow's possessory interests in his digital data because they did not prevent Rosenow from accessing his account" - which seems to display complete ignorance of the other aspects of property rights beside the right to use. It may be legal to do this, I don't know, my point is simply that having glibly clueless judges is a bit alarming.

There's actually an old movie plot on this very point, which doesn't involve digital data. There's a very rare stamp of which there are only two in existence. After much fuss and effort the owner of one of them manages to acquire the second, and promptly burns it, so that his original stamp is now unique, and much more valuable on account of its uniqueness (and more valuable than the pair would be.)

If the Feds had burst in and prevented him from destroying the second stamp, they might or might not be acting within the law. But they would certainly have interfered with the guy's property rights, to his detriment.

The point is made just as well with the metaphorical expression "they broke the mould when they made .. " whoever is being praised.
The literal meaning is that if you've made a beautiful object, say by lost wax casting, 'breaking the mould" ensures that your beautiful object is unique. A law against mould breaking would offend against your right to destroy your property.

[Brett Bellmore]

Agreed, and that occurred to me, too. Ownership is a bundle of rights, and they just took away part of the bundle.

[Voize of Reazon]

Compelling a copy entirely negates the right of destruction

Control of the original hasn't changed. To reach your conclusion you must believe the individual acquires a possessory interest in the copy, or that the existence of "intellectual property" laws somehow means that all of property law now applies to ideas.

[Brett Bellmore]

Isn't the point of protecting "papers" from unwarranted searches just exactly that the person does have some sort of property right interest in the contents of such remaining private?

Let's suppose that, while you were at work next week, the police surreptitiously broke into your home, and copied all your computer and paper files, and photographed the contents of your closets, and just generally collected all the information present. Then they put everything back the way it was, so that you couldn't even tell they'd done it when you got home.

Or perhaps they prevail upon Microsoft to include a back door in everybody's operating systems, so that they can remotely scan hard drives. No information is removed, of course, just copied.

Not a 4th amendment violation?

I think you're missing the point of the 4th amendment, which is just exactly that, without particularized cause to believe a crime has happened, and that it will be useful to solving it, and without that cause being evaluated by an independent tribunal, the government isn't entitled to that information.

It's not about how it gets it, it's about it NOT getting it, without a damned good reason.

[Voize of Reazon]

Brett, what happened to that commitment to textualism we are so often treated to? You will be affirming Roe before too long.

It's not about how it gets it [information], it's about it NOT getting it

Exactly backwards, I'm afraid.

[Brett Bellmore]

We might be talking past each other.

When I say it's not how the government gets the information, it's about not getting it... I don't mean it's not about the details of how the government obtains authorization to obtain the information. The 4th amendment is very much about that.

It's not about the mechanics of obtaining the information. It's about the government just flat out not getting the information absent good cause, as evaluated by an independent arbiter.

If they get the information, it doesn't avoid being a search just because you still have it, too.

[Voize of Reazon]

No, the protection extends to the papers, not to the information they contain. "Papers", of course, is reasonably read to include documents whose production did not involve arborcide.

If the government discovered the same information without a warrant, using a lawful means that didn't require one, they would not face a 4th amendment barrier to using it.

[Brett Bellmore]

Isn't that a bit self-referential, when the topic at hand is when they SHOULD need a warrant?

[Voize of Reazon]

Lee's earlier topic that I responded to was that the right of destruction is a 4th amendment protected property interest compromised by copying.
The latest topic you introduced was whether the 4th protects information or documents.
Do you really maintain that writing down the details of all your crimes and storing it in a secure location means the police need a warrant to get the same information from your partner in crime who has decided to rat you out?

[Brett Bellmore]

No, I don't. I maintain that the 4th amendment means the police need a warrant to copy MY files even if I still have them afterwards.

[Voize of Reazon]

Isn't the point of protecting "papers" from unwarranted searches just exactly that the person does have some sort of property right interest in the contents of such remaining private?

Now I see, this is where you left the roadway..
The caselaw uses the "possessory interest" test to determine whether a seizure has occurred. That is what the OP was about.
The test for a search, on the other hand, can rest either on the violation of a reasonable expectation of privacy, as per Katz, or alternately since Jones and Jardines on a physical trespass for the purpose of gathering information. But that trespass is to the surroundings or container of the information, there is no such hybrid as a property right in the privacy of the information.

[David Nieporent]

That doesn't work when we're talking about information rather than actual property. You have a property right to exclude people from physical property (real and personal). You don't have a property right to exclude people from information. You may have a copyright interest in it. You may have a right of privacy in it. But you don't have a property right in it.

[MatthewSlyfield]

"UPDATE: I fiddled a bit with the post shortly after posting it."

Was Rome burning?

[gormadoc]

Orin Niro

[Armchair Lawyer]

So, some clarification is needed here.

The 4th amendment is illegal search and seizure.

The key phrase, as I understand it, is "The government directed Yahoo on three separate occasions to preserve records related to Rosenow's private communications."

Did the GOVERNMENT actually seize these records? Or was this an order not to destroy these records.

The government has several laws related to not destroying records. The government doesn't actually have to seize them. Is the objection against records preservation?

[Tim B]

Was there some explicit right for Rosenow to demand that Yahoo! delete his stuff (like I think the EU's GDPR has)? If so, did he actually try to have it deleted and have his request not honored?

Or did the preservation order just require Yahoo! to do something that they could in theory have legitimately done on their own if they happened to feel like it?

[Krayt]

Seizure of property is a good argument, but keep hammering the 3rd party doctrine. The People should not have to give up their 4th Amendment rights as the cost of participating in online life.

Between AI cameras in the real world, and omni-tracking on the Internet, credit cards, banks, etc., your virtual life is even more ripe for a virtual panopticon.

Every sin you imagine is already being committed in places like China and Russia, for the thugs to maintain their power. China even has a social credit score -- you piss someone off, dinged! To low, you can't rent, get loans, even get on a bus.

This is ironic, given one of Marx's observations was the bourgeoisie, the middle class, would not be convinced into service of the proletariat in the revolution because the rich bought them off with the trappings of wealth like loans and checking accounts.

Yet here is "communist" china doing that exact thing.

Hmmm. Must be about stories the thugs tell to protect their position as kleptocrats.

[Stephen Lathrop]

Krayt, does that ideology you practice have a name? Basically, I agree with your comment on almost everything, but the premises about government you use to get there just seem weird. Why do you need all that government conspiracy ideology to discuss stuff everyone can see right out in the open?

[Krayt]

I keep dragging it out to keep it in mind. I see little discussion of it.

If it's as solidly in everyone's mind as you suggest, yay, that's enheartening. It hurts nothing to reiterate it, especiay for those new to the idea.

[Michael D]

Help this lay person understand some things.

Suppose police come into a home and photocopy all of a person's important documents that the police believe could indicate a crime occurred but have no probable cause that a crime occurred. But they save those documents in the belief that at a later time, they will develop PC and they can then use some of those documents as evidence in their case.

Is that not a violation of the 4th? How does this scenario differ from what happened in Rosenow, aside from the possibility of an illegal entry to photocopy the documents?

[Roman Moroni]

I'm not a lawyer but I think I see some differences. Let's assume the police are in the home legally (or it's obviously an illegal search). If they have no PC, and no warrant, then we can assume they were allowed in by the owner. But allowing the cops in to talk doesn't constitute permission to search through your files, even without copying them. They are allowed to build PC based on things they can plainly see, but I don't believe that's what you meant.

I suppose if the cop happens to hover over your desk and records everything you have out on his body cam, that information can be used. But it was in plain sight. I don't think he can go through your drawers and record things without your permission.

[Lee Moore]

Wasn't there an example recently of a complaint by a Senator of Congresscrittur that a Capitol police officer had copied papers in the Senator/ Crittur's Capitol office, while doing a routine security sweep. Something to do with J6 maybe ? I don't recall whether the alleged papers were on the desk, or in the desk, but either way not entirely conducive of trust between elected members and Capitol Police.

[Michael P]

It was supposedly a whiteboard in Rep. Nehls's office, and the officer supposedly entered because a door was left open.

[Toranth]

I think this would be more like the police ordering the owner to enter a renter's apartment to find and copy certain papers, but not turn them over to police until asked later - all without a warrant.

But as with all analogies, it isn't a perfect fit.

[Michael D]

That does sound like a better analogy. Thanks

[Mark Leen]

I would not find the srgument waived (precluding certiorari). I would just ask the opinion be unpublished.

[Roman Moroni]

My question is about the potential practical horror of this decision. I'm certainly not dismissing Oren's concern, just trying to fully understand it.

In theory, something exists that the cops can't look at without a warrant. Is the difference between it being on your computer or theirs just a matter of too much convenience for the cops? Or that they can do it without you seeing them search your house? Or that it deprives you of a reasonable window to destroy evidence if you see them coming?

Or is the fear that the government will inevitably break the law and look at your stuff without the same bar of probable cause it would take to get a warrant to search your physical property? Or that it makes it easier for any bad actor to gain access to your files?

[Lee Moore]

There was a case recently, IIRC, where the cops got a warrant to seize various safety deposit boxes, but the warrant explicitly excluded searching them. When the cops (FBI I think) arrived they broke into the boxes and searched them, to, er, confirm ownership. I think it was concluded that no provision of the law precluded them from totally ignoring the warrant's exclusion of searches. Wiser and better informed conspirators may be able to remember the details.

[Michael P]

I think you're remembering the (ongoing) seizure of safety deposit boxes from U. S. Private Vaults. Prof. Kerr has a tweet thread linked from https://news.yahoo.com/fbi-seizure-safe-deposit-boxes-130007096.html about it. A court denied a particularly broad order proposed by one of the users of the boxes, but I haven't seen any courts endorse the search of the boxes or confiscation of the contents.

On the other hand, Prof. Kerr has argued that ex ante restrictions on computer searches "are both unconstitutional and unwise": https://www.virginialawreview.org/authors/orin-kerr/ . The same basic arguments apply here, with the wrinkle that a safety deposit box more clearly touches on a third party's property rights.

[Longtobefree]

It also is worth noting that Rosenow consented to the ESPs honoring preservation requests from law enforcement under the ESPs' terms of use.

One of several reasons why I have no social media accounts.

[Nick Gillespie's Jacket]

Is there a way for Rosenow to win on the 4A issue but still face the wood chipper? Good faith exception, perhaps?

[Brett Bellmore]

I think the original thought on illegal searches is that the people conducting them would be treated as burglars, right? So, the police break into your home to find evidence of your guilt, you go to jail because it IS evidence of your guilt, but they go to jail, too, because they obtained it criminally.

The exclusionary principle is the courts' response to the realization that prosecutorial discretion meant that, no, the police were NOT ever going to jail, basically ever, so the 4th amendment wouldn't mean diddly squat unless you at least deprived them of their ill gotten goods, the use of the evidence.

[Ben_]

We have government working with tech companies to censor political enemies and pandemic critics. The censors are being applauded.

You shouldn’t expect your rights to be protected in a society where censorship and harassment are applauded.

If principles ever start to win out over rage and tactical advantage then rights will have a chance again.

[Commenter_XY]

Professor Kerr....Hope you see this comment. I just want to thank you for your contributions here. I learned so much from your post (and article) on John Marshall's 'trial' wrt the 4th amendment. That was a great article, shining a light on a dark corner of legal history.

For this issue, forcing content preservation by decree, I just don't see how any judge can get to: It was not a seizure. I mean, I read what the opinion said, but still not seeing how they got there.

Maybe the Ninth will re-hear argument en banc?

[Cal Cetín]

"[UPDATE: I fiddled a bit with the post shortly after posting it.]"

Thank you for the clarification.

[Rev. Arthur L. Kirkland]

Prof. Kerr, not surprisingly, advances persuasive points that should be broadly considered with respect to an important, sometimes overlooked policy and legal issue.

What is surprising is that he diminishes those strong points by publishing them at this blog, adjacent to one of Prof. Blackman's juvenile right-wing fever dreams, which predictably has attracted comments such as

(1) "Kagan's a lesbo who didn't recuse on Ogberfell"

(2) "Demonstrators outside the home of Justice Thomas at night should be tasered, pepper sprayed, and beaten. To deter. They should be identified from the videos, tracked, and prosecuted by the DOJ. That would preserve symmetry of false prosecutions of J6 prodemocracy protesters of a stolen election."

(3) "Sotomeyer is a first class affirmative action dunce, and KJB is a second class affirmative action dunce"

(4) "Democrats are normalizing butt banging in sex ed class in Junior High School" (evoking the Volokh Conspiracy's infamous 'throbbing male members' commenter)

At some point, it becomes difficult to provide benefit of doubt to people who voluntarily maintain substandard associations. If there is a legitimate reason a Prof. Kerr would poison and constrain the reception of his important observations by publishing his work at the polemical, partisan, bigot-friendly flaming shitstorm the while, male, right-wing Volokh Conspiracy has become, I hope someone provides it.

It seems inexplicable.

[Rev. Arthur L. Kirkland]

The contributions of Prof. Kerr do not precipitate comments that regularly include vile racial slurs; refer to "stolen election" delusions; call for liberals to be placed face-down in landfills; echo QAnonery; flatter racism, homophobia, xenophobia; and misogyny; and/or fantasize about 'Second Amendment solutions' to the problems caused by all of this damned progress in modern, godless America.

He plainly does not belong here.

[Longtobefree]

The fourth amendment doesn't stop civil forfeiture.
The second amendment doesn't stop gun control.
The first amendment doesn't stop censorship.
The entire constitution doesn't stop abortion.
The entire constitution didn't stop the "vaccine" mandates.
Why bother?

[mikel31556]

The court gets it right. There are two parts to the issue -- interference with a possessory interest in property (Rosenow always had access) and invasion of privacy. As the court notes, the government did not have access to Rosenow’s data with just a preservation letter. It needed a search warrant to get it. (That is a critical difference with Ganias, where the government had the computer.) I discuss these questions in detail at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3937590, arguing that the crucial question with the seizure of digital evidence by copying is privacy and not access. If there is no interference with the user's access to the data and if the government cannot see the data, there is no seizure.
As some of you have noted above, by entrusting the data to Yahoo, Rosenow accepted the idea that Yahoo would have access to his data. Yahoo, like all providers, backs up its servers, so Rosenow accepted the idea that Yahoo would copy his data. If Yahoo made one copy or ten copies, Rosenow suffered no harm as long as Yahoo did not give any copies to someone else. (This distinguishes the policeman getting the extra copy and taking it away.)
Finally, I also argue that there is no “right to delete.” As the Supreme Court said in Segura v. United States, 468 U.S. 796, 816 (1984), “[T]he essence of the dissent is that there is some ‘constitutional right’ to destroy evidence. This concept defies both logic and common sense.”

[Toranth]

In the purest technical sense, there is a denial of access to the files during the copy process. Exclusive access locks are standard.

But beyond that, your argument only makes sense if you think that the user only has any rights in the particular electrons that make up a specific instance of the information. However, this is patently absurd argument when dealing with anything on computers: The electrons that make up a document as you type are different than the ones held in RAM which are different than the ones on disc which are different than the ones on the network, and so on. While this argument has been made some less scrupulous copyright trolls, it simply has never held up.

In this case, the government demanded that Yahoo create a copy and preserve it. That copy belongs to the user no less than the original because it is functionally indistinguishable. Again, unless you think the specific electrons matter. Which is nonsense. So Yahoo, acting on behalf of the government, now controls a copy of the user's information against the user's will. Sure sounds like a seizure to me.
And before you repeat it, there is a HUGE difference between Yahoo making copies to provide the service the user agreed to, and Yahoo making copies with the express intent of giving it to a third party sometime in the future.

As for Segura, if I'm reading it correctly, it was held that the police did unconstitutionally seize the apartment while waiting for their warrant. Sounds somewhat similar to something here, eh?
And then the aside about destroying evidence is a distraction, because in this case there was no "evidence" yet. In Segura, the delay applied during the interval between the request for the warrant and the receipt of it. In addition, the police had been told specifically what they were looking for and where it was.
Seems to me that neither of those applies here, where the government requested copies be retained for them of files they had no idea what the contents were, on the premise that it might in the future be useful to the investigation.

[Magister]

"In the purest technical sense, there is a denial of access to the files during the copy process. Exclusive access locks are standard."

This is incorrect; the normal backups that the service provider would take, in order to restore their system if there were a disaster, would not prevent access. For a small system with known downtime, you could stop everything and take a backup, but that really wouldn't fly for Yahoo or Facebook with so many users in so many time zones expecting the system to be operating all the time.

Everywhere I've worked in IT has taken regular hot backups without stopping the systems or blocking access, and they are routinely created and automatically dropped after a period of time (I have seen periods of a week, 15 days, a month, six months, a year). IF the request was simply not to allow expired backups to be removed, then it hardly seizes Rosenow's property - the regular backups are the service provider's, not Rosenow's - unless you believe that he could demand that Yahoo or Facebook delete his portion of those backups that related to him, even though the terms of service did not provide for that.

The analogies with the era of paper copies made by hand seem mostly irrelevant; it's the ease and even desirability of making backups of computer data that lead to this being routine. The service provider would not have to take positive steps to make the copy, just avoid deleting the copy as quickly as they might.

I am bothered by several possible effects of this decision that have nothing to do with seizing Rosenow's property.
1. If the service provider creates a monolithic backup of all the data of all their customers, then a preservation request might require saving a lot of data that would have been discarded to make room for new backups - which would seize the property (storage capacity) of the service provider, but not of a user like Rosenow.
2. Or the service provider, to avoid that, might extract just the relevant portion of a regular backup, which almost seems like a search (even if it would only be completed when they got the appropriate warrant).
3. Or, to avoid usurping the service provider's storage capacity, the police might generously host the data on machines they own, which would sooner or later lead to someone looking at it before they had the authority to do so.

[Toranth]

The regular backups taken by Yahoo to support disaster recovery are almost certainly useless for storing and retrieving data of this sort. There is a massive difference in cost and effort between restoring a server cluster or SAN from tape/offsite, and preserving a few database entries from being deleted. Assuming Yahoo even keeps physical backups for very long - their own Guide to Law Enforcement says that all data is purged and no longer available to LE after 30-90 days after the user deletes it (or the account/group/webpage/etc).

While it is possible that Yahoo did choose to rely on the regular backups to retain this data, it is far more likely that Yahoo instead either just did not delete the data (but instead hid it) or copied the data into an online storage system dedicated to these sorts of requests - from their documentation, I get the impression that Yahoo receives many of these retention requests every year, although I suspect most have warrants attached.

And no, when you do any copy operation, there will be an exclusive lock on some copy of the data. Databases use transactions, while file systems use exclusive access or shadow files, in order to avoid data corruption. Although some systems will allow locks on sections of files, rather than the entire thing.
While Yahoo may have written custom software that is not safe, it seems unlikely.

I agree with your list of practical issues to maintaining backups, even if they are allowed as a not-seizure. I'd also add one more: I'm not sure that physical backups would satisfy a data retention request. They are almost always out of sync, which means that recent or short-term content may never have been captured.

[Magister]

You are wrong about locks affecting use during backups; while databases work fairly hard to provide read consistency, they don't do it by blocking access to the degree you think. Replication of databases (entirely from the logs generated in normal operation) is pretty routine technology.

I've personally used disaster recovery backups to restore small subsets of a database to a point in time (less than a hundred megabytes from many terabytes); the work is not quick, but it's not something that the provider would have to do at the stage described. Preserving the backups for longer than usual is no real work, but does consume storage resources that might not be desirable.

Findings about how the retention was done or what was requested would be welcome. The scale and the specialized work needed would seem relevant.

[Toranth]

Data locks in file systems and databases are generally quite short-lived, but they still exist. It's a basic requirement to ensure data integrity.
Are you arguing that the lock is too short to matter? That is probably true - I brought it up because I wanted to point out that the ruling in the case was making their incorrect claim based on a misunderstanding of what happens. Lawyers making declarations about technical matters is not often a good thing.

Backups for Yahoo customer data is going to be different than backups for mere terabytes of data, even more so than anything reasonably measure in megabytes.
I doubt that Yahoo even uses tape backups for their customer data - there is simply too much of it to be practical. I think that, mostly likely, they use some form of online offsite storage.

[mikel31556]

Professor Kerr uses the Supreme Court’s traditional definition of seizure in the physical world – a meaningful interference with a possessory interest in property. If there is a delay of an instant because the user is seeking to access the data when Yahoo is copying it, that is not likely a “meaningful” interference. The issue is not the electrons but the content – the ideas that the electrons hold.

Suppose you visited my house, had your diary in your pocket, and accidentally dropped it. You call the next day to see if you left it at my home; I tell you did. You return promptly and collect it. Suppose, however, that before you retrieve it, I make a copy. There is no meaningful interference with your possessory interest in the property, but the copying feels like a seizure. I suggest we think that because I have interfered with your privacy interest in the information, not your possessory interest in the diary. The situation in Rosenow is different because, unlike your diary in my house, the government cannot get access to the content of the account without a warrant. True, Yahoo has made a copy, but that was something that the user accepted by entrusting the information to Yahoo. The law prohibits Yahoo from giving the copy to the government without further legal process – generally, a search warrant. When we talk about a Fourth Amendment seizure of a physical object, a seizure means that the government has it; the owner does not. When we talk about digital copying, the owner still has the data. We should consider it to be a seizure if the government can get a copy and view it. However, if the government can compel the copying but cannot get the copy, it is hard to see why a preservation letter is a seizure because the person has lost neither access to the data nor any privacy in it.

I discuss all of this in more detail in my article. I also note that preservation letters were probably vital to prosecuting those who invaded the Capitol on January 6, 2021. Many of them posted pictures and videos of their actions which the government has been using as evidence. Once they realized that the government was using their images against them, many would have tried to delete them. Without preservation letters, this evidence would have been lost

Finally, while Segura is just a statement about the idea that there is no right to destroy evidence, we have many obstruction statutes that penalize the destruction of evidence. For example, 18 U.S.C. § 1519 prohibits the altering or destroying of evidence with the intent to obstruct any investigation. It is hard to see why this would apply only to physical evidence and not digital evidence. Statutes do not determine the meaning of the Fourth Amendment, but they show a common understanding about the preservation of evidence inconsistent with a “right to delete.”

[David Nieporent]

For example, 18 U.S.C. § 1519 prohibits the altering or destroying of evidence with the intent to obstruct any investigation.

…except fish.

[Toranth]

You are assuming your own conclusion about the meaning of "seizure", but forcing the example of a physical object that cannot by trivially and indistinguishably copied. You also seem to be ignoring that seizure applies to control of something as well as possession. If I have something but the government controls the use of it, then they have seized it - whether it is a physical diary or a digital scan of it.

I also find the insertion of "meaningful" to be doing a significant amount of work. How long can access be denied to the user for a copy to be mad for the police? A second? A minute? An hour? For extremely large data such as video libraries, that isn't an impractical question.

I also find the suggestion that Yahoo's terms of use give the police free access to everything on the system without warrants to be bad. That stretches beyond what a reasonable user would think the terms meant when they said they would cooperate when required.

All in all, I think there are too many bad analogies to physical objects being used in these arguments. But if people insist on using physical objects as there reference, I need to ask what exactly is the data being requested? If it isn't the electrons, then it must be something else... something non-physical.

[David Nieporent]

But beyond that, your argument only makes sense if you think that the user only has any rights in the particular electrons that make up a specific instance of the information. However, this is patently absurd argument when dealing with anything on computers

You're assuming your conclusion here. It's only "absurd" if it's wrong.

. So Yahoo, acting on behalf of the government, now controls a copy of the user's information against the user's will. Sure sounds like a seizure to me.

It doesn't to me, because information isn't property. One cannot seize information. One can seize the media in which the information is manifested, but not the information itself.

Copying the information might be a copyright violation. It might be a privacy violation. But it isn't a property violation.

Let's suppose someone working for Yahoo looked at your data, but memorized it rather than copying it. Would that be a seizure, even under your theory? No. That's because information is incapable of being seized.

[Toranth]

Yes, it is absurd to conclude that anything in digital law considers data to be the electrons that are its physical form. If you believe otherwise, I'd very much like to see the laws or cases that have concluded otherwise.

Plenty of people - including lawyers specialized in the field - disagree with you and say that , information can most certainly be property. It can be bought or sold, stolen, or damaged. EFF gives reference to Ingram Micro, Inc, among others, to support this, although they also mention things like trade secret laws.

Your argument would say that computer data can never be seized, under any circumstances, even if the police were to lock out the user or encrypt the data.
This is an absurd conclusion. If the police remotely access my data on my home computer and prevent me from accessing it, even though I still possess the hard disk, they control the information (yes, even if I've memorized it) and have seized it.

As for your "Yahoo employee memorized it", it's not a seizure for the same reason it isn't copyright violation: we treat people's minds and memories differently deliberately. It isn't because information cannot be seized, but because trying to apply such laws to human minds is impractical.
Incidentally, what do you think the trial evidence value of that Yahoo employee's memories would be? Any laws regarding that?

[David Nieporent]

If the police remotely access my data on my home computer and prevent me from accessing it, even though I still possess the hard disk, they control the information (yes, even if I've memorized it) and have seized it.

If they're preventing you from accessing the device, they've seized the device. That's the opposite of the scenario we're discussing; they don't interfere with your possession in any way.

[Toranth]

They're only preventing from accessing the data not the device in this hypothetical. You claimed that would not be a seizure, despite the police clearing taking control of the information away from me.

That is an absurd claim.

[ReaderY]

It’s the 19th Century. You engage a secretary to take dictation and help you organize and edit your diaries. The secretary is an independent contractor rather than an employee. The secretary has his own business. He keeps your diaries on his premises and takes them out when he is working with you.

The government asks your secretary to take your diaries that are in his posseession, take out his quill pen, and make it a copy. This occurs only when you aren’t there, and soesn’t interfere with your ability to access the diaries.

Seizure?

What makes it different if your diaries are kept by an internet company?

[Bubba Jones]

Did the government ORDER Yahoo to preserve the records or did they ASK Yahoo to preserve the records?

That seems important.

And once an investigation is underway, isn't it illegal to destroy evidence? This case seems to fall pretty squarely within the category of "preserving evidence" rather than a search or seizure to me.

IANAL.

[mikel31556]

The statute calls it a request, but the effect on the provider is mandatory. "A provider of wire or electronic communication services, or a remote computing service, upon the request of a government entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process." The preservation period is 90 days and the government can extend it once for an additional 90 days.

I discuss the obstruction statutes in the article and in at the end of a post replying to Toranth.