Nevada Magistrate Judge Recommends Rejecting Internet Preservation Challenge—And Why It's Wrong

The first opinion on Westlaw in response to a motion to suppress based on my model motion.

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.

Comments

[Archibald Tuttle]

How would it change things if the government passed a law saying that all users can never "really" delete their files? I mean "really" in the sense that on Windows you can delete a file, but it is not really gone, it disappears from the folder but it appears in the "recycle bin" from which it can be undeleted.

To me, that sounds like an end run around the "seizure" problem.

[Rossami]

Which enumerated power in the Constitution grants Congress the power to pass such a law?

Who would pay for such a law if you tried? Even cheap servers become expensive when you multiply them by infinity.

And perhaps most importantly, what Congresscritter would ever want to be held to such a standard where ever passing comment could be used against them forever?

[Magister]

I could imagine a law requiring server backups to be kept for varying periods of time; say, daily backups for 10 days, weekly backups for 35 days, monthly backups for 100 days. A total of up to 20 backups, many of which companies running servers would already be keeping. The Commerce Clause would probably justify this, based on harm to interstate commerce if companies lost their cloud data to poor data management practices. Cost of additional backups passed on to the purchasers of such services, same as costs caused by any other government regulation.

The government would not need to "request" specific backups, although they might not have the specific dates they wanted, and extracting the specific data they want from a large backup could be difficult for them.

I would think it unlikely that a user's power to delete their data would extend to the power to expunge them from all disaster recovery backups, although they do go away over time as old backups are discarded.

[Archibald Tuttle]

Which enumerated power in the Constitution grants Congress the power to pass such a law?

Business record keeping.

[Rossami]

Your customer's emails are not "business records" as that term is defined in the law. Nor does Congress have an enumerated power that I can see letting them simply change the definition.

[ReaderY]

Professor Kerr,

I don’t think the drugs in the freezer example is a good one. A tangible object like a quantity drugs is unique; it can only be in the physical possession of one person at one time. And it’s a fungible commodity. If I happen to come into possession of a quantity of drugs similar to yours, even identical, I haven’t really interfered with your use of your drugs in any meaningful way.

The magistrate judges seems to be arguing that a copy merely creates an entirely new thing, like getting another batch of drugs similar to uour batch, which doesn’t interfere with the possession of the original.

I think you would be better off using an example of intangible property as your hypothetical. An example that comes to mine is a plans for an invention. Someone comes in, opens the safe, gets out the plans, copies them, orders a batch of gadgets to be made by a different factory, and returns the plans, all without the original company knowing. Has the company’s right to its property been interfered with? Of course. Making a copy interferes with the inventor’s exclusive control over the realization of the plans.

I think yhat to get to a winning argument, it’s critical to analogize to intellectual property that can be actualized, such as patwnts, copyrights, plans, etc., rather than to individual tangible objects or fungie commodities. I think if individual tangible objects is the correct analogy, your position loses.

I think the fact that drugs are fungible conmodities kills your argument. If I have a magic duplicator that can make an exact copy of your drugs, then using it doesn’t really interfere with your use of your drugs.

I think you have to make an analogy to something that can be reproduced, yet isn’t a fungible commodity, in order to make a case that making a copy interferes with the owner’s property rights. I think intellectual property like plans etc. is a much better analogy here.

[Orin S. Kerr]

No, physical items are in joint possession all the time. That’s why I use the physical example; joint control is super common and super clear, and no one has to my knowledge ever suggested that this is relevant to what is a seizure.

[ReaderY]

If I pull out my magic duplicator and make a copy of your drugs, then I’ve created a completely new object. You have some drugs. I have some drug. So what if they happen to look the same? Each object is possessed by one and only one person. There’s no joint possession. That’s why I think your joint possession analogy isn’t the most apt one.

[Orin S. Kerr]

A hypo doesn't work if it just recreates the problem you're considering, though. I don't think it responds to the judge's argument if you create a hypo that is unanswered in the cases and replicates the very problem you're discussing.

[ReaderY]

I may not have realized the specific argument you were attempting to refute by the analogy. I was focusing on a different point of the magistrate judge’s opinion, that copying doesn’t interfere with the owner’s rights. In the case of a physical fungible commodity, like non-patented drugs, copying (if we could magically do it) probably wouldn’t interfere with the owner’s rights. So a different analogy would be needed to explain why it does.

The intellectual property analogy might still work to refute a joint ownership argument. Copying plans doesn’t create a joint ownership. The act of copying doesn’t create a separate right to use them.

Intellectual property involves intangible rights that are separate from those inhering in the physical possession and control of the medium in which the information the rights are rights to is stored. I think that’s the point I was trying to make.

[Rossami]

I also struggled with your joint-possession analogy. What did not come through clearly on first reading (and even on the second reading here) was that you're trying to rebut the judge's claim (as I now think I understand it) that the fact of joint possession means there could not have been a seizure in the first place. If that is in fact what the judge was arguing, it's such a patently irrational claim that the "drugs in the freezer" became a distraction rather than a help to understanding.

[OtisAH]

What I think separates the case from those examples is the warrant. In the arrest example, the person is literally detained at work on police request whether they’re ever actually arrested. In the drug hypothetical the police get evidence they couldn’t have gotten if the roommate just let them in (?).But in this case, the person loses the “right” to fully delete incriminating evidence, such as that’s possible, but they only lose that right if the police can get a warrant. If there’s no warrant, there’s no search, if there’s no search, there’s no deprivation of rights. IANAL

[F.D. Wolf]

The government requires banks to maintain detailed records of checking and savings accounts for five years. Are those Fourth Amendment seizures? Medical records retention of six years under HIPAA? If not, why are those different?

[Orin S. Kerr]

[oops, repeat submission]

[Orin S. Kerr]

You might want to read the St Louis University Law Journal article linked to above, as it explains why in detail.

[F.D. Wolf]

I shall, as you may confirm through the download count, assuming the website retains that information long enough.

[Brett Bellmore]

“The government still needs a warrant to ultimately access the copy,”

Having been around the block a few times, to the point where I’ve had time to start noticing what’s going on, let me spoil the impending surprise: It’s likely to turn out that, no, the government doesn’t really need a warrant to access the copy.

After all, the data IS in the hands of a third party, who probably lets the government have a peek at it if asked politely. In much the way social media platforms aren’t “really” censoring, just politely responding to government requests they're in theory perfectly capable of saying "no" to.

I say this not because I have direct evidence that they’re doing exactly this, but they’re already doing close enough with other sorts of data.

[Orin S. Kerr]

Your feels clashes with my experience, so I guess I will be more inclined to go with that experience than your feels.

[Brett Bellmore]

No problem. Just don't be horribly shocked if, years from now, you find out that the government has been informally accessing such copies without a warrant to use for 'parallel construction'. In the same way the DEA has been informally using warrantless NSA surveillance. (The 'close enough' practice I was referring to.)

[Brett Bellmore]

On second thought, has it really been your experience that the government wouldn't try to do something like that, or that the business in question wouldn't be amenable?

The way the government would never ask social media companies to censor their customers, and the companies would never agree to do it?

The way the government would never ask financial service companies to cut off service to lawful industries, and they'd never do it?

Maybe the way the FBI would never abuse FISA warrants to spy on domestic targets?

https://reason.com/2023/07/31/fbi-made-inappropriate-use-of-foreign-surveillance-program-to-spy-on-americans/

I find myself wondering, what country exactly was it that you accumulated this experience in? Because it doesn't seem to have been this one.

[Noscitur a sociis]

L, as they say, OL.

[ReaderY]

Imagine there was no internet.

The banks account books would belong to the banks.

Customer diaries and papers stored in the safe deposit box would be the customers’.

It would be very clear that there would be a difference between imposing an obligation on the bank to keep books, records of its business, and imposing an obligatio to copy its customers’ personal papers stored in its vaults.

[Rev. Arthur L. Kirkland]

Anyone who wants to be taken seriously by judges who are not Federalist Society members should find another blog.

[The Turtle Dove]

Just thinking off the top of the dunce cap, if I tell a provider to snapshot the data layer of account X at T1, then get a warrant at T2, and the remote computing service, or what you will, gives me X(T1) and X(T2), or even just X(T2) plus anything that's vanished in the interval, I actually have a third piece of information: ΔX(T1-T2). As if a landlord, after making an inventory of the furnished apartment at T1 and T2 therefore knows that the Maltese falcon on the mantel vanished precisely during that time.

Knowing that the deft tried to delete something during the pendency of the investigation seems rather important--making the Δ within a precise interval a fact outside the bitstream copies, but still a fact provided to the government. Essentially, it's an observation made inside the closed phone booth prior to the issuance of a warrant, and at the request of the police.

On the seizure line of the argument, outside of European contexts, a user is never going to have the reasonable expectation that her information will be deleted from all caches and backups. Snapshotting at the account level merely makes it much, much more convenient. So control of data is a dicey claim. And Bob can still delete the beer pong pix from FB before his job interview, since the user still has control of public-facing copies/representations/performances of his data, and can revise and extend all he wishes to. You can repaint your house, and that's not diminished by the fact that it's just been immortalized in Google Streetview. What control the user has lost is invisible to him/her and any user of the site.

The real seizure argument, perhaps (again, top of the head), is the fact that the copy has been made and is indisputably in the possession and control of the person working as an agent of the state (as per your arguments), even in advance of its delivery to the state. If my accountant agrees to work as a CI against me and xeroxes the critical ledger page and puts it in his billfold to carry around until he can figure out a way to get it to the precinct house, I'm inclined to say that, since he's off the clock and has that xerox in his pocket, the state has taken something from me.

Or perhaps not. It's all one. Cheers.

Mr. D.

[governmentshill]

Prof. Kerr,

If I understand the argument, the preservation order constitutes a seizure because (in part) it deprives the user of the full measure of control over his data, specifically the ability to delete.

Does it change your analysis if the user clicking "delete" on his data does not, in fact, delete the data from anything other than his own view in whatever user portal he's using to interact with the ISP's services? It's been my experience that data is often recoverable by the ISP for some indeterminate amount of time after being "deleted" by the user, dictated by the whims of the ISP and. One could imagine a preservation order being sent after a user has "deleted" data from his account, and the ISP freezing its own internal archive of the data even where that data is no longer immediately accessible to the user.

If that's true, then it would seem that a preservation order doesn't deprive the user of control of the data so as to make it a seizure.

Thoughts?

[mikel31556]

Only replying here to Professor Kerr's suggestion that there is a right to delete data. (See my more detailed response here to Professor Kerr's St. Louis University Law Journal article. https://scholarship.law.slu.edu/lj/vol66/iss4/8/.

If you are going to use the physical world analogies for seizure, then you have to deal with the fact that it is a crime to destroy physical evidence. See e.g., 18 U.S.C. § 1505 (concealing or destroying documentary material in an antitrust civil investigative demand). 18 U.S.C. § 1519 (destroying or concealing records or documents to impede, obstruct, or influence and investigation within the jurisdiction of any department of the United States or under Title 11 [Bankruptcy], “or in contemplation of any such matter or case.”). In Segura v. United States, 468 U.S. 796, 816 (1984), the Court wrote, “the essence of the dissent is that there is some ‘constitutional right’ to destroy evidence. This concept defies both logic and common sense.”

If you cannot do it with physical evidence, I don't see why digital evidence should be different.

[ducksalad]

The problem here is that you’re incorrectly assuming the files are evidence and the people deleting them are criminals trying to destroy evidence.

The 4th Amendment is intended primarily to protect the innocent, and it doesn’t seem like a stretch for innocent people to believe they can delete their own files that aren't evidence of anything.

In reality, the vast majority of files subject to these holds aren’t evidence of anything, and there is no probable cause to believe the people owning the files are criminals. (If there was, presumably the cops could go straight to getting a warrant.)

[mikel31556]

The preservation request does not give the government access to the contents of the account. The law requires the provider to make a copy at the time of the request and keep it for 90 days. (Because the provider is obligated to make the copy under the law, I agree with Professor Kerr that the provider is acting as an agent of the government.) The government can request one 90-day extension. In order to get the data, the government must (within that 180-day time frame) obtain a search warrant. Like all warrants, that means that the government must show a judge that there are grounds to believe that there is evidence of a particular crime in the material, and the warrant has to identify the types of data that the government can look for and seize. Without making this showing, the government never gets to see the copy that was made pursuant to the preservation request.

[kotodama]

"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."

Ah yes, the classic judicial move of starting off with the conclusion, and then just sort of leaving it there without actually bothering to provide an explanation.

Ironically, I see that MJ Albregts started his career working as a public defender for six years.

[TheAmazingEmu]

The magistrate judge is clearly wrong on the state actor argument. I can't see how they're not if a party is doing something at the request of the government where it would be illegal if they failed to comply (I don't even think the second prong is required. They're doing something at the behest of the government so they're acting as an agent of the government).

The second argument is closer and, honestly, it's because there isn't a good non-digital argument. The argument is seizure, not search, so arguments where a person was required to look at the items or even plausibly take a picture of the items (the only analogy I can really think of for tangible objects that's at all similar) don't really apply because those tend to be search arguments. Photocopies are the closest where a writing is taken and photocopied. The problem is there is a clear temporal window (regardless of how brief) where someone other than the defendant has the writing and the defendant does not have it. Under those circumstances, it's clearly been seized from them. With digital copies, any clear analogy breaks down. I think the argument Prof. Kerr is making is a sound one. I am very sympathetic to the argument, but it's hard to argue by analogy in any way that's helpful.

[mikel31556]

Professor Kerr and I discuss the issue of copying the physical document but leaving the original in place (an issue in the Jefferson case, Professor Kerr cites above) in our articles. In my article, I suggest that digital is different when it comes to this area. In the physical world, a seizure is a meaningful interference with a possessory interest in propertyThe concern of the seizure of physical things is that if the government seizes property, it has it, and the usual possessor/owner does not. That is not true of copying (digital seizure). The owner still has unfettered access to his data. My article suggests that the concerns with digital seizure are those of privacy (the concern about searches in the physical world) and not possession. If, as in Jefferson, the government makes a perfect copy of a document but leaves the original behind, the owner still has the document, but the government can read it. That is a privacy concern. Under this theory, the preservation letter is not a seizure because the government cannot see the contents of the account unless it gets a proper court order, usually a search warrant.

[excellentdan]

An intriguing dive into the complexities of Fourth Amendment limitations on internet content preservation. The distinction between a 'request' and a legal 'requirement' is a compelling one, as it raises questions about the nature of compliance. Just as one can't deny a police officer's 'request' to make an arrest, the same holds true when it comes to digital preservation.

The analogy with shared possession of contraband in a freezer underscores the idea that control matters, and making copies alters that control. It's fascinating to consider how these principles apply in our rapidly evolving digital landscape. Looking forward to seeing how this unfolds and whether the objection sheds new light on the 'seizure' debate.