The Volokh Conspiracy
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Internet Preservation and the Fourth Amendment—Case Updates, Part I
The first of two rulings, and why I find it unpersuasive.
It is a common practice among criminal investigators to "preserve" Internet accounts without cause. When an investigator learns that a suspect has a Facebook or email account, the investigator will direct the provider to run off and save a copy of the suspect's entire account and to hold it for the government. If, weeks or months later, the investigator can eventually develop probable cause, the investigator can come back with a warrant and order the provider to hand over the previously-preserved account files. And if the investigator never develops probable cause, the provider will usually realize eventually that the government isn't coming back, and it will usually then delete the extra government-ordered account records. This procedure is called "Internet preservation," and it's done in the name of a provision of the Stored Communications Act, 18 U.S.C. § 2703(f).
As regular readers know, I think the Fourth Amendment imposes limits on Internet preservation. First, the government ordering the provider to act makes the provider's act on the government's behalf state action, triggering the Fourth Amendment. Second, copying the account contents is a "seizure" of the account contents. And third, that warrantless seizure has to be justified as "reasonable" by having initial suspicion (typically probable cause) to justify the initial seizure and then the seizure occurring for only a reasonable period before a warrant is obtained. So I argued in my article, The Fourth Amendment Limits of Internet Preservation. And I backed up that article with a model brief for defense attorneys to file.
I'm pleased to say that at least a handful of motions to suppress have been filed based on my model brief. In several of those cases, the government avoided the merits by eschewing reliance on the preservation copy of the account. That is, instead of relying on a copy of the account that was only available when the preservation was made, the prosecution relied instead on files that were in the account when the government came to the provider with a warrant.
In at least two cases, however, courts have issued merits rulings. Unfortunately, the two courts that have issued merits rulings held that the Fourth Amendment was not violated. I want to discuss those rulings, and to explain why I see them as so unpersuasive. This post will discuss the first case, United States v. Dallmann (D. Nev. May 25, 2024). A second post, which I'll plan to put up in a few days, will cover United States v. Colbert (D. Kan. May 9, 2024).
Dallmann holds that Internet preservation raises no Fourth Amendment issues because Internet providers acting on the government's behalf to preserve accounts for the government are private actors not regulated by the Fourth Amendment at all. In Dallman, the government ordered Google to preserve a copy of the defendant's gmail account. Later, the government came back with a warrant and ordered Google to hand over the previously-preserved account files.
Here's the court's reasoning for why Google was not a government actor when it preserved the account for the government:
The Ninth Circuit addressed a similar issue in United States v. Rosenow. 50 F.4th 715 (9th Cir. 2022). In that case, the defendant argued that federal regulation of electronic service provider searches and disclosures triggers the Fourth Amendment because the two relevant federal statutes authorized warrantless searches and required private parties to report evidence derived from those searches. The court found this argument unconvincing. The first statute, The Stored Communications Act, "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. The second statute, the Protect Our Children Act, only authorized mandatory searching, not mandatory reporting. Id.
Here, similarly as in Rosenow, the Government made a request for preservation pursuant to 18 U.S.C. § 2703(f). This statute "did not authorize the service providers to do anything more than access information already contain on their servers." Id. at 730. Google complied with a federal statute mandating preservation of records. Importantly, the Court finds that Google did not search the content of its records for evidence of a crime—as government agent would. It merely preserved existing records. The Ninth Circuit emphasized that a private actor does not become a government agent simply by complying with a mandatory reporting statute. Id. (referencing Mueller v. Auker, 700 F.3d 1180, 1191-92 (9th Cir. 2012)). Google would then not be a government agent by merely preserving information already in its possession.
The Court finds that Google was not a government agent, and the Defendant did not meet its burden of showing that the search was governmental action. See United States v. Rosenow, 50 F.4th 715, 728 (9th Cir. 2022). "[E]ven if the Fourth Amendment protects files stored with an [E]SP, the [E]SP can search through all of the stored files on its server and disclose them to the government without violating the Fourth Amendment." Id. (quoting Orin Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212 (2004)).
Hence, the Fourth Amendment was not implicated by Google's actions. Accordingly, the Court determines that the Government did not unlawfully seize Mr. Dallmann's email accounts through its preservation request.
I appreciate the cite, but I don't think that can be right. The legal issue addressed in Rosenow was whether the mere existence of the Stored Communications Act and Protect Our Children Act turned everything the Internet provider did into government action. Rosenow ruled that the statute's existence did not have that effect. That seems clearly correct; a statute imposing some limits on provider action doesn't mean that every provider action is government action.
But the legal issue here is very different: When the government orders a private company to act on its behalf, and the private company acts solely in response to the government and solely on its behalf — literally copying the files and setting them aside just for the government — are they government actors?
It seems obvious to me that they are. True, the provider is "compl[ying] with a federal statute mandating preservation of records." But that's part of what makes it government action. If a statute requires you to do what the government tells you to do, the fact that Congress is forcing you to comply doesn't make your action less imposed by government. It just makes it what it sounds like: Government-imposed action, exactly what the Fourth Amendment addresses.
As I argued in my article:
Content preservation in response to a § 2703(f) letter readily satisfies the Fourth Amendment test for state action. When the government makes a § 2703(f) request, the government is directly compelling the private party to act. "[U]pon the request of a governmental entity," the law states, the provider "shall take all necessary steps to preserve records and other evidence" in its possession. The records "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." The government directs, and the law requires the provider to act as the government's agent.
Commonwealth v. Gumkowski shows how provider preservation under this scheme counts as state action. In Gumkowski, the service provider Sprint was approached by a state trooper who requested emergency assistance in a murder investigation. The state trooper asked Sprint to disclose a suspect's cell-site location records without a warrant. The SCA permits a provider to disclose records to the government at its discretion if, "in good faith," it "believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency." Sprint opted to reveal the records under that standard. The Massachusetts Supreme Judicial Court later ruled that Sprint's response to the state trooper's request was Fourth Amendment state action: "if law enforcement instigates the search by contacting the cell phone company to request information, there is State action. That Sprint could have refused to provide records in response to [the state trooper's] request does not change the fact that he instigated the search."
Caselaw from the physical world advances the point. In United States v. Hardin, the government asked an apartment building manager to enter a specific apartment in his building to see if the defendant, who had a warrant out for his arrest, was inside. The apartment manager agreed, and he went to that apartment and used his key to enter. After entering the apartment, the manager confirmed the defendant was inside and relayed that information to the police. The Sixth Circuit ruled that the apartment manager was a state actor for Fourth Amendment purposes. "[T]he manager was acting as an agent of the government" under the Fourth Amendment, according to the court, "because the officers urged the apartment manager to investigate and enter the apartment, and the manager, independent of his interaction with the officers, had no reason or duty to enter the apartment."
Under Gumkowski and Hardin, Internet providers following § 2703(f) will count as state actors Like Sprint in Gumkowski, and the building manager in Hardin, an Internet provider that receives a preservation notice is acting to help the government. The government instigates the process, and the provider follows the government's direction. Of course, a provider (or a building manager) can act on its own and remain a private actor. But when the government approaches a provider and asks it to act for the government, a complying provider is a state actor. If anything, the case for state action is clearer with preservation because § 2703(f) is mandatory. The provider in Gumkowski and the manager in Hardin volunteered to follow the government's request. It was their choice. In contrast, § 2703(f) gives providers no choice but to comply. Although the remedy for violations is unclear, the statute is phrased as a direct command: the provider "shall take all necessary steps to preserve records and other evidence" for the government.
So that's why I don't find Dallmann persuasive. More in a few days, when I'll explain why I'm not persuaded by Colbert, either.
