Updated Model Motion to Suppress For Unlawful Internet Preservation

Hey, criminal defense lawyers, this is for you.

As regular readers know, I am very interested in how the Fourth Amendment applies to Internet preservation—the practice, applied to a vast number of Internet accounts every year, of the government having Internet providers run off copies of accounts without cause and holding the copes in case the government comes back with a warrant. As I explained in this 2021 article, I think there are significant Fourth Amendment limits on preservation that governments are currently ignoring.

But it's not just a theory; it's also a brief!  Last year I posted a draft motion to suppress for criminal defense lawyers to file in preservation cases, and I recently updated the motion and have posted the updated versions here: .pdf draft motion to suppress (or, to download the word version to edit and file it, here: .docx draft motion to suppress).  If you're a criminal defense attorney, know a criminal defense attorney, or live in the same state as a criminal defense attorney, please feel free to share the brief with the criminal defense lawyers you know.

As it happens, getting defense lawyers to file the brief has been a challenge. As I noted on Twitter a while back:

I wish the level of interest defense counsel had in filing my model motion to suppress for 2703(f) preservation were as high as the level of concern prosecutors have that defense counsel might file the model motion.

— Orin Kerr (@OrinKerr) January 21, 2023

Part of the problem is that the preservation process is largely hidden.  Prosecutors don't normally disclose that preservation occurred.  And when it's disclosed, the disclosure is usually subtle: It is referenced in the warrant materials in order to help the providers comply with the warrant, but the form itself is not provided.  So prosecutors know the issue exists, but they don't disclose or highlight the fact of preservation; while defense lawyers don't know the issue exists, and they don't know that there's an important form they should be asking for but haven't received.  And so preservation goes on and on without being challenged in court, even though there are (I think) very good arguments it is illegal and the arguments can be made easily by just filing the model brief.

As always, stay tuned.

 

 

Comments

[Ken Arromdee]

I don’t see the phrase “third party doctrine” anywhere in this draft. Why doesn't the third party doctrine control?

[Orin S. Kerr]

Because the issue here is protected content information; the third party doctrine only applies to non-content records. See Warshak, etc.

[Ken Arromdee]

I looked up Warshak. It only applies to the 6th Circuit. Wouldn't that mean that the third party doctrine still covers this everywhere else?

[Orin S. Kerr]

No, several circuits have adopted Warshak, and the Supreme Court's ruling in Riley seems to presuppose it. In any event, if you think Warshak is wrong, your answer for how the Fourth Amendment applies to the Internet is that it simply doesn't, and this argument won't work for you.

[apedad]

I wonder who really "owns" the account and it seems it comes down to the Terms of Service.

When you deactivate a Facebook account, Facebook states they "permanently delete" all photos, messages, etc., but does that mean the person's record is completely erased from existence or is there still a record on Facebook's systems - and again, who "owns" that record.

Also, it would come down to what type of info the govt is asking an internet company to preserve.

I'm sure companies can (and do) preserve meta data (when the account was opened, who opened it, what IP address was used, what email account was used, etc.), and AFAIK), that is company info - which they can preserve and share.

[ReaderY]

I think this is a weakness in Professor Kerr’s general argument. Service providers and platforms often have terms of service that assert that they, and not the user, own the content. Why aren’t those terms dispositive for 4th Amendment purposes? How does a non-owner have a right to dispute an owner’s consent to a search?

I’ve argued that the States and Congress have broad authority to enact legislation that restricts or prohibits these sorts of transfer-of-ownership terms, and can (for example) specify that the users and not the platforms own the content. But in the absence of such legislation, it seems to me that the contractual terms control.

[David Nieporent]

Service providers and platforms often have terms of service that assert that they, and not the user, own the content.

They don't. You keep saying this, and I keep telling you it's wrong, and yet you keep saying it.

[Bubba Jones]

Facebook/Meta refers to your activity (including posted content) as "data we collect." It's not "data you own."

Furthermore:
How do we respond to legal requests, comply with applicable law and prevent harm?
We access, preserve, use and share your information:
In response to legal requests, like search warrants, court orders, production orders or subpoenas. These requests come from third parties such as civil litigants, law enforcement and other government authorities. about when we respond to legal requests.
In accordance with applicable law
To promote the safety, security and integrity of Meta Products, users, employees, property and the public. .
We may access or preserve your information for an extended amount of time. .

Why we may preserve your information longer
Your information, including financial transaction data related to purchases or money transfers made on our Products, may be preserved and accessed for a longer time period if it’s related to any of the following:
A legal request or obligation, including obligations of Meta Companies or to comply with applicable law
A governmental investigation
An investigation of possible violations of our terms or policies
To prevent harm
For safety, security and integrity purposes
To protect ourselves, including our rights, property or products
If it’s needed in relation to a legal claim, complaint, litigation or regulatory proceedings

[David Nieporent]

Here's what Facebook says about content:

You retain ownership of the intellectual property rights (things like copyright or trademarks) in any such content that you create and share on Facebook and other Meta Company Products you use. Nothing in these Terms takes away the rights you have to your own content. You are free to share your content with anyone else, wherever you want.

However, to provide our services we need you to give us some legal permissions (known as a "license") to use this content. This is solely for the purposes of providing and improving our Products and services as described in Section 1 above.

Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings). This means, for example, that if you share a photo on Facebook, you give us permission to store, copy, and share it with others (again, consistent with your settings) such as Meta Products or service providers that support those products and services. This license will end when your content is deleted from our systems.

You can delete individual content you share, post, and upload at any time. In addition, all content posted to your personal account will be deleted if you delete your account. Learn more about how to delete your account. Account deletion does not automatically delete content that you post as an admin of a page or content that you create collectively with other users, such as photos in Shared Albums which may continue to be visible to other album members.

https://www.facebook.com/terms.php

[Stephen Lathrop]

Paragraph three seems at war with paragraph one. I get the notion that a copyright holder can grant a license, but retain full rights otherwise. Seems like that notion depends for its usefulness on not granting any license as broad as the one in paragraph 3.

The passive voice in the last sentence of paragraph three seems ominous, although the bolded copy which begins the next paragraph might be taken as reassuring.

The notion of a license which ends when my content, "is deleted from our systems," raises a question how I can be sure that has happened, and whether I have a reliable and timely means to accomplish it.

[Noscitur a sociis]

Paragraph three seems at war with paragraph one.

...

The passive voice in the last sentence of paragraph three seems ominous

Why?

[Stephen Lathrop]

Noscitur, because it opens the questions, who has agency to complete the deletion, when it might be deemed to have occurred, and how extensive is the system a user would have to keep track of to know he is secure. Had it said instead, 'when you complete the deletion," presumably reasonable action by, "you" would put the power to reclaim your rights solely in your own hands. Take the subject out of the sentence with the passive voice, and all of that seems vague.

[denizen]

I'm in a position to use and spread the argument. But I'm confused on the practical aspects. Why can't the service provider just get the data anew upon receipt of the warrant, disregarding the preserved copy? So why does this matter; or, perhaps more technically, why doesn't the independent-source doctrine apply so long as the warrant application doesn't rely on anything that came from the preserved copy? The "we could hypothetically have gotten this data otherwise" argument seems like something that,
in practice, judges would accept to avoid suppression.

[Voize]

Sure, if the original content is still available. The point of preservation though is to squirrel away a copy in case the user deletes or modifies the original, or deletes the account entirely.

[denizen]

Do we really think that any of these companies actually delete things? Even if they do, isn't it theoretically recoverable if you figure out what drive it was on? I think theoretical recoverability might be enough for the "alternative source" doctrine.

[Orin S. Kerr]

In talking to the providers' lawyers, the answer is "yes" and "no."

[denizen]

Interesting. Thank you.

I might just be dense here, but the argument then is primarily useful where the data has been deleted? It seems perhaps risky to assert that for fear of admitting to a process crime or getting a "consciousness of guilt" instruction at trial.

[Rev. Arthur L. Kirkland]

This sounds like laudable public service to me.

Is anyone working on a national database of information concerning police officers, laboratory technicians, prosecutors, and others that litigants and decisionmakers (judges, jurors) might find useful in evaluating credibility? That could be a great law school project, at least outside conservative states inclined to outlaw it.

[Stephen Lathrop]

Professor Kerr, do you suppose government content preservation problems apply only to social media, or do you think there are troves of common carrier intercepts stored as well?

[Dr. Ed 2]

Well, Stephen, ever since the Anthrax scares of 20 years ago, the US Post Office has been scanning and recording the front of every envelope sent through the mail. They are now marketing it as "informed delivery" -- see below -- but the real purpose was to be able to tell where an envelope came from.

As I understand it, they do this two ways -- first each batch (i.e. mailbox load) is identified, and then they further can identify the few which came before and after the suspicious letter -- and hope that those will have valid return addresses on them. They then put their own bar code on it (usually in a UV color) which helps them track it, at least in theory.

The protection on data retention always used to be cost -- that's how we got the Y2K issue (it was too expensive to store the "19" in all the dates so only the last two digits were stored) but now storage is cheap. Walmart is offering a 128 GIG flash card for $20 and that isn't even that great a price anymore -- compare that to the 1980s...

So how long is the USPS storing this data????
https://www.digitaltrends.com/home/usps-informed-delivery/

[Dr. Ed 2]

The flip side of this is when defense counsel requests the letter cover as exculpatory.

Say, for example, he mailed a birthday card to his mother and put it in a California mailbox -- he clearly couldn't have been in Massachusetts 3 hours later. Handwriting would be dueling experts, if mother still had the envelope, it might be possible to get his fingerprints off it -- if, if, & if. And maybe someone else mailed it for him. I know.

But still, wouldn't it be interesting to be able to argue that he was actually there putting an envelope in the mailbox when he was purportedly 3000 miles away doing something nasty?

[Noscitur a sociis]

The relevant provision of the Stored Communciation Act, 18 U.S.C. § 2703(f), creates an obligation for any “provider of wire or electronic communication services or a remote computing service”. But for reasons that I assume are obvious, social media services are often going to be the richest sources of potential evidence, and thus some of the most attractive targets for investigators.

[John F. Carr]

If defense attorneys are to know when to file the motion, the prosecution needs to be under an affirmative duty to disclose enough facts to tip them off.

[Dr. Ed 2]

Brady rule? Or at least it's intent?

[windycityattorney]

I don't think this implicates Brady as the preservation request is neither incriminating or exculpatory. Its rather neutral. BUT this doesn't mean that the prosecution has not committed a discovery violation. In my state, discovery is governed by our state supreme court rules.

I would think of it more as an expanded right to confrontation- which typically is analyzed in the context of the right to confront witnesses in court (cross examination) but could be read to also include the right to 'confront' the state's evidence. (i.e, have your own experts analyze evidence or the right to inspect evidence). More broadly, though, basic fairness says whatever the State has the defense has a right to see as well. If the State has the preservation requests or forms they filed and fails to disclose; then I think an argument could be made they are violating basic principles of discovery. The remedy for that is not always suppression; but that is one of the options (state cannot use evidence it failed to disclose). The problem is there isn't really a fruit of the poisonous tree doctrine for discovery violations which there is under 4th amendment suppression. So Orin's motion, if successful, would lead to suppression of the results of the search warrant whereas a discovery violation sanction or remedy would likely be more limited.

[Noscitur a sociis]

I would think of it more as an expanded right to confrontation- which typically is analyzed in the context of the right to confront witnesses in court (cross examination) but could be read to also include the right to ‘confront’ the state’s evidence.

How exactly could you read it that way, when the right is "to be confronted with the witnesses against" the defendant?

[windycityattorney]

Because witnesses do more than just answer questions. They lay foundations for exhibits or other physical evidence and the defense has a right to disclosure of all that. For example, in the simple drug case the state may call a lab tech to testify to their testing of the drug to prove it was in fact, cocaine. The lab tech will have made a report the "lab report". That report would need to be disclosed to the defense in discovery in advance of trial. The defendant has the right to also have their own expert inspect the drugs and in some cases, do their own test.

The govt in these cases Orin is referencing acknowledges they have to turn over the search warrant and the affidavit in support; so its curious that the preservation request would be omitted since its a step precedent to seeking the warrant.

[Commenter_XY]

Wow, this was informative. So when you write, The govt in these cases Orin is referencing acknowledges they have to turn over the search warrant and the affidavit in support; so its curious that the preservation request would be omitted since its a step precedent to seeking the warrant., you are basically saying: the government has to show their work (meaning, disclose the preservation request and provide a copy to the defense). No freebies.

Why though, do you say it is neutral....Wasn't it used in some manner to ensnare a client and bring them to trial? That part, I am not quite understanding.

[Noscitur a sociis]

That report would need to be disclosed to the defense in discovery in advance of trial.

Yes, but only because there are procedural rules that require pretrial disclosure of exhibits and expert materials. Those rules are not constitutionally required.

The govt in these cases Orin is referencing acknowledges they have to turn over the search warrant and the affidavit in support; so its curious that the preservation request would be omitted since its a step precedent to seeking the warrant.

As Prof. Kerr notes, preservation requests often are noted in warrant application, since the fact that the materials were preserved helps establish probable cause that the provider will have the sought materials. But at any rate, under what theory is the prosecution required to disclose every “step precedent” in its investigatory process?

[Noscitur a sociis]

More broadly, though, basic fairness says whatever the State has the defense has a right to see as well.

That may be, but it's certainly not what the Federal Rules of Criminal Procedure say.

[windycityattorney]

And I was referencing state court and my state's supreme court rules that govern discovery.

[Noscitur a sociis]

What state? I’m surprised to learn that one requires prosecutors to disclose everything they possess to defendants.

[Commenter_XY]

Professor Kerr, are there other proposed applications of your brief?

For instance, suppose I (as a layman) want to know whether my provider has just handed over my account data (and contents) to law enforcement with specifying any crime, or a warrant for that matter. Can your model brief be repurposed toward that end?

Other: Enjoy reading your posts here a lot. I learn a hell of a lot.