The US Ninth Circuit Court of Appeals appears to have given the government permission to order anyone’s internet account data copied and held without any cause, whenever they want, without providing any justification, according to University of California, Berkeley School of Law professor Orin Kerr’s analysis of a recent Ninth Circuit briefing that affirmed Carsten Igor Rosenow’s conviction and sentencing for sexually exploiting children in the Philippines.
In his appeal to the Ninth Circuit, Rosenow argued that he had a right to privacy in his digital data and that law enforcement requests to preserve his Yahoo! account data, which were submitted without a warrant after a tip from Yahoo!, violated the Fourth Amendment’s protection against unreasonable search and seizure.
But the Ninth Circuit rejected his argument and affirmed his conviction, saying that Yahoo!’s preservation of Rosenow’s records didn’t amount to an unreasonable seizure because the preservation requests didn’t prevent him from accessing his account and Yahoo! didn’t provide the government with access to his data without further legal process:
“A ‘seizure’ of property requires ‘some meaningful interference [by the government,] with an individual’s possessory interests in [his] property.’ Jacobsen, 466 U.S. at 113. Here, the preservation requests themselves, which applied only retrospectively, did not meaningfully interfere with Rosenow’s possessory interests in his digital data because they did not prevent Rosenow from accessing his account. Nor did they provide the government with access to any of Rosenow’s digital information without further legal process.”
The court also claimed that Rosenow had already consented to these preservation requests when he accepted Yahoo!’s terms of service:
“It also is worth noting that Rosenow consented to the ESPs [electronic service providers] honoring preservation requests from law enforcement under the ESPs’ terms of use.”
We obtained a copy of the Ninth Circuit’s briefing for you here.
Hellbound and Down 