The Volokh Conspiracy
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As regular readers know, I wrote an article, The Fourth Amendment Limits of Internet Content Preservation, on what I see as significant Fourth Amendment limits on the government's power to order Internet providers to run off copies of people's online accounts and save them for possible later government access.
Here's how the practice works. When agents think a person might have some connection to a crime, federal agents order Internet providers to run off a government copy of the entire account and to hold it for the government away from the account holder. The point is to make sure suspects can't delete their files and thwart a possible investigation down the road. A federal statute, 18 U.S.C. § 2703(f), requires Internet providers to comply. In recent years, the statute has been relied on with extraordinary frequency; in 2019, about 1 in every 820 adults had their account copied for possible government use. This all goes on in total secrecy. Under order of federal law, Internet providers create and hold government copies, for the government, and in most cases no one tells the user. The government still needs a warrant to ultimately access the copy, but preservation allows the government to gain access to a stored copy that they would not have otherwise—a copy that may have records that the user might have otherwise deleted.
My article, which I have turned into a model motion to suppress for defense attorneys to file, argues that there are Fourth Amendment limits on this process. A private actor who does the government's bidding under penalty of law is a state actor, and running off a copy and holding it for the government, so the user cannot control it, is a Fourth Amendment seizure. I argue that this seizure has to be justified as reasonable under the Fourth Amendment, which will usually require probable cause or at least reasonable suspicion. But a common practice, in which every possible suspect's account can get copied and held for the government, "just in case," without particularized suspicion, is generally unconstitutional. (There are then interesting questions of what the remedy is. A plausible remedy is that the government has to use the account copy that existed when they ultimately served the warrant to get the copy, not when they made the preservation request. But that's beyond today's post.)
A few motions have been filed based on my model motion, and the first opinion on the issue to just recently appeared on Westlaw. The motion to suppress in this case wasn't the exact model motion I drafted, but it had the basic gist of it in a condensed form.
Here's the opinion, from Magistrate Judge Daniel J. Albregts of the U.S District Court for the District of Nevada: United States v. King, 2023 WL 4844888 (D. Nev. July 17, 2023).
Unfortunately, the Report and Recommendation contends that the motion should be denied on the ground that preservation is not a government seizure at all. Under that reasoning, any federal, state, or local government employee could cause every account of every person in the United States to be copied and held for the government with no suspicion at all, and that simply wouldn't trigger the Fourth Amendment.
The rest of this post will explain Magistrate Judge Albregts' reasoning and why I am unpersuaded. I'll do the arguments in reverse order, as I think it makes a little more sense that way. I'll start with whether there was state action, and then turn to whether a seizure occurred.
(1) The State Action Question
First, Judge Albregts argues that a provider who complies with a § 2703(f) request to preserve files for the government's potential use, as required by federal law, is not a state actor so the Fourth Amendment is never triggered in the first place:
The Court recommends denying King's motion to suppress the internet accounts. It finds that King did not meet his burden of showing that Omegle or TextNow should be deemed agents of the government by complying with the government's preservation request under 18 U.S.C. § 2703(f). Although the Government directed Omegle and TextNow to preserve the accounts, its involvement was limited only to requesting the preservation under 18 U.S.C. § 2703(f). And although Omegle and TextNow were responding to a request from the Government, they were also complying with their statutory obligations.
King has also failed to carry his burden of demonstrating that the Court should deem Omegle and TextNow agents of the government because the cases on which he relies are distinguishable and nonbinding on this Court. In Commonwealth v. Gumkowski, the Massachusetts Supreme Court found that Sprint acted as a government agent when it turned a defendant's cell site location information over to the government without a warrant. Commonwealth v. Gumkowski, 487 Mass. 314, 320-21 (Mass. 2021). However, here, the government did not ask Omegle or TextNow to turn over information, but instead requested that the electronic service providers preserve the information already in their possession under the Stored Communications Act pending the government obtaining a warrant. In United States v. Hardin, the Sixth Circuit Court of Appeals found that an apartment manager acted as an agent of the government when he entered a defendant's apartment at the government's request under the guise of repairing a leak to determine if the defendant was in the apartment. See United States v. Hardin, 539 F.3d 404, 417-20 (6th Cir. 2008). But Omegle and TextNow's actions of preserving information already in their possession as required under statute is meaningfully distinguishable from the private apartment manager entering a person's home to determine specific information at the government's behest.
With all respect to Magistrate Judge Albregts, I don't think that can be right. Magistrate Judge Albregts is missing something super important: Federal law mandates that providers comply. It's a statutory "requirement," with the directive being what the provider "shall" do. Here's the text of 18 U.S.C. § 2703(f), with emphasis added:
(f) Requirement To Preserve Evidence.—
(1) In general.— A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental 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.
(2) Period of retention.— Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.
Granted, the statute calls the government's demand a "request." But when the law mandates that you comply with a "request," that's not really a request. It's an order. And when it's making you do the government's bidding, it's an order that makes you a state actor when you comply with it.
To see this, consider a hypothetical. Imagine the statute were about making arrests rather than making copies of Internet files. Let's slightly rewrite the statute accordingly into the following:
(f) Requirement to Make Arrests
(1) In general. —Any person, upon the request of a governmental entity, shall take all necessary steps to arrest a suspect who the government entity requests to be arrested.
(2) Period of detention. A suspected arrested shall be detained for 48 hours, or until the government takes custody of the suspect arrested.
Imagine a police officer wants Bob arrested. He comes up to Albert and says, "I request that you arrest Bob." The officer also shows Albert the legal requirement of federal law that he "shall" make an arrest when a police officer "requested" it. Being made aware of the legal obligation to arrest, Albert arrests Bob on the police officer's behalf.
In that scenario, I think we would see pretty clearly that Albert is a state actor. It would be pretty weak to say there was no state action because the government merely made a "request," as the federal statute said that a requested person "shall" do what the request was. It's an order, not a request. And it would be pretty weak to say that Albert was not a state actor because he merely "complied with his statutory obligations." The statutory obligation was to become a state actor; the law requires him to become the government's agent.
That's exactly the case with § 2703(f). Internet providers don't fulfill preservation requests because they feel like it. It's not their idea. They get nothing from it. They fulfill the requests because federal law makes them do it, and the providers don't want to violate federal law that requires them to comply. When governments make preservation "requests" to providers, those providers are acting on the government's behalf, doing the government's bidding because they have to. Seems pretty clear to me that the providers are state actors for Fourth Amendment purposes.
(2) The Seizure Question
Magistrate Judge Albregts also recommends concluding that, even if the providers were state actors, their running off a copy of the account that the defendant could not control does not "seize" anything. As I read this, the government can order anyone's account to be copied without limit, or even order government servers to be installed that automatically make government copies of everyone's data. As long as the government doesn't look at its copy yet, the act of just having the government copy made doesn't trigger the Fourth Amendment at all.
Here'e the argument:
A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in their property. United States v. Jefferson, 566 F.3d 928, 933 (9th Cir. 2009). In analyzing what constitutes a possessory interest in the context of law enforcement's search of a defendant's rental car, the Ninth Circuit determined that "a 'possessory or ownership interest' need not be defined narrowly…a defendant who lacks an ownership interest may still have standing to challenge a search, upon a showing of 'joint control' or 'common authority' over the property searched." United States v. Thomas, 447 F.3d 1191, 1198 (9th Cir. 2006) (internal citations and quotations omitted).
Here, the Court does not find that by preserving King's accounts from deletion Omegle and TextNow "seized" King's property. King argues that preservation of his accounts "dispossessed him of exclusive control over the accounts and their contents." But the Government has the better argument on this point. As a preliminary matter, while the Ninth Circuit was discussing a defendant's ability to challenge a search of a rental car in Thomas, the Court finds the Ninth Circuit's discussion of possession instructive here. Considering the Ninth Circuit's decision that possession need not be defined narrowly, the Court finds King's insistence that possession requires the exclusion of all others to be unpersuasive. As the Government points out, King never had exclusive control of his accounts because, "[a]t all times, the data was jointly possessed by both the internet service providers and King." The Government also argues that a preservation request does not alter the account holder's ability to use their account and view, alter, or delete information. Instead, the preservation request creates a "snapshot" of the account as it existed at the time the service provider received the preservation request. The Court thus does not find that Omegle and TextNow "seized" King's data.
Again, I don't see how that can be right. It's true that Internet providers have possession of user data. It's data stored on their servers. But why would this mean that making a copy on the government's behalf is not a seizure? I don't see why joint possession makes a seizure any less of a seizure.
Consider this hypothetical. Let's say you have drugs wrapped in aluminum foil in your freezer in an apartment that you share with your roommate. The government goes to your roommate and says, "Go into your apartment and look inside the freezer, where you will find a package of drugs in aluminum foil. Bring the package to us now, or else we'll arrest you for obstruction of justice." Not wanting to be arrested, your roommate gets the package from the freezer and gives it to the government.
In that scenario, the package was obviously "seized" for Fourth Amendment purposes. The fact that your roommate had common authority over the contents of the freezer before the government told your roommate to get it is simply irrelevant. You had control of the package, and the government took away your control. The government isn't free to take away all your stuff without limit just because you happen to have a roommate with common authority over the freezer. By the same reasoning, the government isn't free to order copies made of all your Internet files without limit just because the Internet works by having accounts with third-party providers.
Magistrate Judge Albregts also agrees with the government's argument that making a government copy is not a seizure because it "does not alter the account holder's ability to use their account and view, alter, or delete information." But how can that be? Step back and think about it: The entire point of the statute, and of the preservation request, is to alter the account holder's ability to delete their information. Specifically, the point of the statute is to deprive account holders of their ability to delete incriminating files. True, because the process occurs in total secrecy, the account holder can't know that the government has altered their ability to delete their information. Because no one tells the account holder, the account holder will wrongly think they can delete their files. But the point of the statute is to take that control away. They used to have control over their files, and government action took that control away by seizing a copy that the user cannot control. That is a Fourth Amendment "seizure."
If I am reading the docket sheet correctly, objections to the Magistrate Judge's R&R are due before District Judge Jennifer Dorsey at the end of August. As always, stay tuned.