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.

Comments

[jdgalt1]

I would like to see a court prohibit the entire practice, repeated here, of offering contracts of adhesion that bind the signer to future changes. They are both per se unconscionable and violate the spirit of the Statute of Frauds. When I sign a contract I expect it to stick, as is, permanently or for the term stated in it. It is illegitimate and tantamount to fraud for the business to want to move the goalposts.

[BadLib]

If that were to be the law, internet based services like Facebook, Google search/gmail/docs, reason.com, etc. could just set the term of the contract to "one day" and once a day you would have to click on an "I accept" box and apps would have to invoke an "I accept current contract" API once a day (or perhaps once per user of the app).

That would get people more and more used to clicking "ok" to agree to something they have no idea the content of. Reading and comparing ten or twenty TOS agreements a day is something virtually no user would do - not even hardly any of the small minority who do read updated TOS agreements currently would do so. It would also make the contracts easier to change day-by-day.

I'm not sure that's a win.

[KHP54]

I'm sure I am far from alone in thinking that such nonsense (one-day contracts) would be prima facie evidence of bad faith/nefarious intent and would immediately find other service providers.

[Noscitur a sociis]

Seems like a bit of chutzpah for the defendant to say that the "Government waived reliance upon consent" when (as Prof. Kerr points out) the defendant himself waived the entire issue by failing to adequately raise it in his brief.

[Rev. Arthur L. Kirkland]

Why return to this blog, Prof. Kerr, and stain your work and reputation with its retrograde content, largely undisguised bigotry, and low-grade partisan polemics?

You are better than this.

Unless, perhaps, you do not wish to be better than this.

[santamonica811]

Off-topic/threadjack warning:

Orin, I very much hope you're gonna post here, at The VC, about the recent seizure of Eastman's cell phone (or was it Clark's phone??). According to the reporting I've seen, the agents held the phone up to his face, and used the 'facial recognition unlock' feature to, well, unlock the phone.

Q 1. Is this a legally-settled issue?
Q 2. Are there different types of warrants? One warrant would allow a cop to merely seize my phone. A different type of warrant would allow seizure *and* allow the cop to compel me to unlock the phone. (But see below.)
Q 3. If it's fine for the cops to unlock the phone by holding it up my face, I trust that I'm correct in assuming that this same cop could force my finger onto the phone, to use the 'fingerprint unlock' feature, correct? (If courts treat these two differently, on what theory?)
Q 4. If the cops can force me to unlock my phone via facial recognition and via my fingerprint; can they also force me to unlock my phone that is protected by a traditional password? Either by telling the cops my password, or by my taking the phone, typing in the password, and then handing the phone back to law enforcement? If the cops can NOT do this last one; why not?

Are all of these settled law, with the same guidelines in all Jx? Or, do the rules vary from Circuit to Circuit?

[Nick Gillespie's Jacket]

On the iPhones at least, if you simply hold the power button and volume down button at the same time for two or three seconds, it will require the passcode to open up the phone, even if you have a Face ID enabled. (Alternatively, if you are able to turn off the phone, it requires a passcode to unlock it once it’s turned back on.)

[Rev. Arthur L. Kirkland]

I regret the developing conclusion that Prof. Kerr is at least as much a Volokh Conspirator (movement conservative, white, male, bigot-friendly blog) than he is just about anything else.

This Federalist Society mouthpiece has decided that the subjects of John Eastman, Jeffrey Clark, election subversion, insurrection, and the like are not to be mentioned. The Conspirators may have concluded -- perhaps reasonably -- that discussing those issues might interfere with this blog's goal of making stale, ugly right-wing thinking more popular and palatable in modern America.

So, as this blog did with disgraced former federal judge Kozinski, the silent treatment (with plenty of diversionary chaff tossed about) has been chosen. The Conspirators -- and not just the delusional rube from South Texas or the guy who can't stop using a vile racial slur from UCLA -- are falling in line quite reliably.

It's a double round of cowardice, with a stiff hypocrisy chaser, for everyone at the Volokh Conspiracy. I won't say they've all swallowed the un-American stuff, but at least one of them has.

[Orin S. Kerr]

Arthur,

I am writing publicly about these issues quite often at at my Twitter feed, which is where I mostly write these days. Instead of coming up with all sorts of theories for what my silence means at the blog, where I don't write very often, it might be useful to just follow me on Twitter instead, where I do:

twitter.com/orinkerr

[Rev. Arthur L. Kirkland]

I customarily avoid Twitter — no Facebook, Instagram, Snapchat, TikTok, either — but I will check your tweets.

Any thoughts concerning this blog’s changes — more racial slurs, more Blackman, less libertarianism, more appetite for censorship, fewer appearances by people like you — in recent years?

And why take your thoughts about Trump, election subversion, insurrection, Republican bigotry, and similar issues elsewhere? Don’t like this audience?

[Rev. Arthur L. Kirkland]

So far, my access to your tweets is severely limited consequent to my lack of a Twitter account. I will try to work on that. The few I could read were worthwhile. Thank you.

[Nick Gillespie's Jacket]

With respect, the only appropriate response by you would have been an apology to him. He was very gracious in responding to your comment—which I think was very unfair to him—in such a measured way.

[Orin S. Kerr]

SantaMonica811,

I still write about all of these issues, but over at my Twitter account rather than at the blog. You can read my long thread addressing these questions starting here:
https://twitter.com/OrinKerr/status/1541548843829018626

Orin

[santamonica811]

Orin,
I don't have Twitter? Can I still follow those posts of yours without installing this app on my phone? Or is Twitter one of those sine qua non type of thing?

[phoqueue]

actually having lawyers file the motion has been more of a challenge than I initially expected.

Interesting. I wonder why. I'd love to have law professors (at least the sharp ones) write briefs for me.

[Orin S. Kerr]

From what I can tell, most criminal defense lawyers just aren't used to thinking of the issue. Most don't know preservation exists, much less thought about what legal issues it may raise. So I need lawyers to start thinking of an issue that they haven't thought about, and to raise a challenge that hasn't been raised. It's a little bit out of the box.