The Volokh Conspiracy

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Update on the Ninth Circuit's Rosenow Case—Plus a New Model Brief, and Other Litigation


I have written before about the Ninth Circuit's troubling April ruling in United States v. Rosenow, which held (among other things) that Internet preservation under 18 U.S.C. § 2703(f) is entirely outside the Fourth Amendment.  "Internet preservation," for those who haven't followed the issue, is the process by which the government directs an Internet provider to make a copy of the entirety of someone's account and to hold it for the government.  I think this ruling is wrong, as I have explained before.  But it's been a while since I posted on the issue, and I thought I would bring readers up to date on the case as well as related developments.

First off, there has been a lot of action on rehearing matters in Rosenow.  On June 8th, counsel for Rosenow filed this petition for rehearing in the case. The petition leads with the preservation issue, although it also addresses other questions.  On June 21st, an advocacy group called "Restore the 4th" filed an amicus brief in support of the petition for rehearing. The government has obtained an extension of its brief in opposition to rehearing, which is now due on the first day of August.

Second, I have revised my model brief by adding a new section to respond to the claim, alluded to in Rosenow, that Internet users have consented to any searches or seizures because they used Internet accounts governed by terms of service that permit providers to comply with legal process.  I think this is pretty clearly wrong, and a new section of the model brief explains why (see pages 18-22).

Finally, have received word of at least two motions to suppress for Internet content preservation being filed based on the model brief.  I would guess some other motions have been filed that I don't know of, but I have learned of at least two.  As I have noted before, developing the arguments and writing the model brief was one step, but actually having lawyers file the motion has been more of a challenge than I initially expected.  Anyway, I am glad to learn that at least some motions to suppress have been filed using the brief.

As always, stay tuned.