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Facebook Data Release to Cops Evades Fourth Amendment Limits

April 29, 2022, 8:45 AM

A Ninth Circuit ruling that allows tech companies to turn over an individual’s online account data to law enforcement for preservation without violating the Fourth Amendment raises privacy and constitutional questions over protecting that information.

Evidence uncovered by Yahoo Inc. and Facebook Inc. via account searches—and later used to convict a defendant of child exploitation—wasn’t collected at the behest of the government and didn’t violate the Fourth Amendment, the U.S. Court of Appeals for the Ninth Circuit wrote in an April 27 opinion.

The decision prompted debate among lawyers and academics about what impact the ruling will have on digital preservation for criminal investigations and what role “terms of use” agreements play in account privacy.

“Yahoo and other providers are free to go pretty far in searching your data and not run afoul of the Fourth Amendment because they’re not state actors,” said Laurent Sacharoff, a law professor at the University of Arkansas. “Even if they verge close to working closely with the government in terms of turning information over, there’s few limits to that.”

The dissent was correct in stating that Yahoo and Facebook were essentially government agents in this case, said Tim Scott, an attorney at McKenzie Scott PC who represented defendant Carsten Rosenow.

“This ruling puts online privacy at risk for all of us,” Scott said in a statement. “This case cries out for review by a broader or higher court.”

Representatives for Facebook and Yahoo didn’t immediately respond to requests for comment.

‘Possessory’ Interests

The Fourth Amendment protects individuals from unreasonable government searches and seizures.

Rosenow, who was convicted on one count of attempted sexual exploitation of a child and one count of possession of sexually explicit images of children, argued his Fourth Amendment rights were violated when Yahoo and Facebook investigated his accounts without a warrant and reported the evidence of child sexual exploitation that they found to the National Center for Missing and Exploited Children.

But the Ninth Circuit found law enforcement’s preservation requests for the data didn’t violate Rosenow’s “possessory interests” because they didn’t prevent him from accessing his account. A “seizure” of property under the Fourth Amendment requires meaningful governmental interference with an individual’s right to possess it, the court wrote.

“What the Ninth Circuit misses here is this idea that possessory interests include the right to exclude, not merely the right to access,” Sacharoff said.

Law enforcement officials have to strike a careful balance between protecting people’s privacy and preserving digital data for investigations, said Paul Luehr, a partner at Faegre Drinker Biddle & Reath LLP in Washington, D.C., and a former federal prosecutor at the Department of Justice.

Digital data can be easily deleted or altered, so preservation requests are an important mechanism for maintaining the integrity of an investigation, he said.

“It’s important to note the companies didn’t provide info without further legal process,” Luehr said. “If the government had asked for content and metadata without any further legal process and it was delivered to them directly, that would’ve been a problem—but that didn’t happen here.”

Terms of Use

Companies such as Yahoo and Facebook are free to dig into communications of users for legitimate purposes, and contractual agreements often prevent illegal activity from users, said Marcia Shein, a Decatur, Ga.-based federal criminal defense lawyer at Shein, Brandenburg, and Schrope.

“This opinion isn’t a free-range pass to the government to arbitrarily start searching people’s accounts,” Shein said. “This is the result of an internal investigation from Yahoo and Facebook, and they turned it over like whistleblowers.”

In general, social media companies’ terms of use state that those companies reserve the right to review content and take it down, said Jamie Nafziger, a partner at Dorsey & Whitney LLP in Minneapolis.

Their terms also typically contain provisions that allow sharing data with law enforcement if there is a subpoena or search warrant, as well as a right to protect themselves legally, she said.

“The platforms have the incentive and desire to not have criminal activity going on on their platforms, so you can understand why they’d want to take action,” Nafziger said.

Rosenow agreed to Facebook’s and Yahoo’s terms of use that laid out its honoring of preservation requests from law enforcement, the Ninth Circuit found.

Still, terms of use are often designed to protect business interests, and hardly anyone reads them in detail, said Jennifer Lynch, surveillance litigation director at the Electronic Frontier Foundation in San Francisco.

The Ninth Circuit erred in its analysis of Rosenow’s Fourth Amendment rights with respect to the internet service providers’ terms of service, she added.

“The Supreme Court and all other courts that have addressed the question have made clear that digital content you store with a third party is protected by the Fourth Amendment,” Lynch said in an email.

To contact the reporter on this story: Jake Holland in Washington at jholland@bloombergindustry.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Tonia Moore at tmoore@bloombergindustry.com