“Retaining” Internet accounts without reason is a common practice among criminal investigators. When investigators learn that a suspect has a Facebook or email account, investigators will instruct the informant to flee and save a copy of the suspect’s entire account and retain it for the government. If, weeks or months later, investigators are ultimately able to establish probable cause, investigators can return with a search warrant and order the provider to turn over previously saved account documents. If investigators never find probable cause, the provider usually eventually realizes the government isn’t coming back and then typically deletes the additional account records ordered by the government. This program is called Internet Protection and is conducted under a provision of the Stored Communications Act, 18 USC § 2703(f).
As regular readers know, I believe the Fourth Amendment imposes limits on online protections. First, the government orders the provider to take action, making the provider’s actions on behalf of the government state action, thus triggering the Fourth Amendment. Secondly, copying account contents is a “seizure” of account contents. Third, a warrantless seizure must be shown to be “reasonable,” i.e., justified by initial suspicion (usually probable cause) and then occurring only within a reasonable time before a warrant was obtained. So I pointed out in the article, Fourth Amendment Limitations on Internet Protection. I have provided a sample article for defense attorneys to submit.
I’m pleased to say that based on my model brief, at least a few motions to suppress have been filed. In several of these cases, the government avoided merit by avoiding reliance on preserved copies of accounts. That is, prosecutors no longer rely on a copy of the account that was only available at the time of preservation, but instead rely on documents in the account when the government served the search warrant to the provider.
However, in at least two cases, the court issued merits rulings. Unfortunately, both courts that ruled on the merits found that the Fourth Amendment was not violated. I want to discuss these rulings and explain why I find them so unconvincing. This article will discuss the first case, United States v. Dalman (Nevada, May 25, 2024). My second post scheduled to be published in a few days will cover United States v. Colbert (D. Kan, May 9, 2024).
Dalman Argues that online protections do not raise Fourth Amendment issues because internet providers that protect government accounts on behalf of the government are private actors and are not subject to Fourth Amendment regulation at all. exist DalmanThe government then ordered Google to retain copies of the defendants’ Gmail accounts. Later, the government came back with a search warrant and ordered Google to turn over previously saved account documents.
Here’s the court’s reasoning for why Google isn’t a government actor when it maintains accounts for the government:
The Ninth Circuit addressed a similar issue in United States v. Rosenow. 50 F.4th 715 (9th Cir. 2022). In this case, the defendants argued that federal regulation of electronic services provider searches and disclosures triggered the Fourth Amendment because two related federal statutes authorized warrantless searches and required private parties to report evidence obtained from those searches. . The court found this argument unpersuasive. The first statute, the Stored Communications Act, “does not authorize a service provider to do anything other than access information already contained on its servers.” ID. Page 730. ID.
Similar to Rosenow, the government filed a preservation request in this case under 18 USC § 2703(f). The regulation “does not authorize service providers to do anything beyond the information already contained on their servers.” ID. Article 730. Importantly, the court found that Google did not search the contents of its records for evidence of a crime as government agents would. It just keeps 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. (See Mueller v. Auker, 700 F.3d 1180, 1191-92 (9th Cir. 2012)). In this way, Google no longer becomes a government agent simply by retaining the information it already possesses.
The court held that Google was not a government agent and that the defendants failed to meet their burden of proving that the search was a government act. See United States v. Rosenow, 50 F.4th 715, 728 (9th Cir. 2022). “[E]Even though the Fourth Amendment protects storage in [E]SP, [E]SP can search all stored documents on its servers and disclose them to the government without violating the Fourth Amendment. .Wash.L.Rev.1208, 1212 (2004)).
Therefore, the Fourth Amendment is not implicated by Google’s conduct. Therefore, the Court found that the Government did not unlawfully seize Mr. Dallmann’s email account through the preservation request.
I appreciate the quote, but I think it might be incorrect. legal issues involved in Rosenau The question is whether the mere existence of the Stored Communications Act and Protect Our Children Act turns everything Internet providers do into government action. Rosenau It was held that the existence of the statute had no such effect. This seems obviously true; regulations that impose some restrictions on provider behavior do not mean that every provider action is a government action.
But the legal issue here is very different: when the government Order A private company acts on its behalf and a private company acts on its behalf alone In response to the government and alone Represent it – copy the file verbatim and set it aside only for government -Are they government actors?
To me, it’s obvious that they are. Indeed, providers are “complex”[ying] Federal regulations mandate record keeping. need You do what the government tells you to do, in fact Congress is force Your compliance does not reflect your actions less Imposed by the government. It just sounds like this: Government-imposed action that is what the Fourth Amendment addresses.
As I said in the article:
Preservation of the contents of a § 2703(f) letter readily satisfies the Fourth Amendment test for state action. When the government files a § 2703(f) request, the government directly forces the private partner to take action. “[U]The law states that at the request of a government entity, a provider “shall take all necessary steps to preserve records and other evidence in its possession.” deadline of days.
Commonwealth v. Gumkowski illustrates how provider protections under the program can be considered state action. In Gumkoski, a state trooper contacted service provider Sprint to request emergency assistance in a murder investigation. State police asked Sprint to disclose the suspect’s cellphone site location records without a search warrant. The SCA allows providers to disclose records to the government at their discretion if they “believe in good faith that an emergency involving danger of death or serious bodily injury to any person requires immediate disclosure of emergency-related information.” Sprint chose to disclose records under that standard Records. The Massachusetts Supreme Court later ruled that Sprint’s response to the state trooper’s request was a Fourth Amendment state action: “A search is a state action if law enforcement initiates a search by contacting a cellphone company to request information.” Lint could have refused to provide information to record the response [the state trooper’s] The plea does not change the fact that he incited the search.
Case law in the material world advances this point. In United States v. Harding , the government asked an apartment complex manager to enter a specific apartment in his building to see if the defendant, who had a warrant for his arrest, was inside. The apartment manager agreed and he went to the apartment and entered with the key. Upon entering the apartment, the manager confirmed that the defendant was inside and relayed the information to police. Sixth Circuit rules that apartment manager is state actor for Fourth Amendment purposes. “[T]The court said “the manager was an agent of the government” under the Fourth Amendment “because the police urged the apartment manager to investigate and enter the apartment without the manager having any authority independent of the police’s interaction.” “
Under Gumkowski and Hardin, Internet providers that follow § 2703(f) will be considered state actors, such as Gumkowski’s Sprint, and Hardin’s building managers (the Internet providers who received preservation notices) are taking Action helps the government. The government initiates the process and providers follow government instructions. Of course, the provider (or building manager) can act on its own initiative and remain a private actor. However, when a provider is contacted by the government and asked to act on behalf of the government, the provider who complies is a state actor. If anything, the reasons for state action are clearer with respect to reservations because Article 2703(f) is mandatory. Gumkoski’s provider and Harding’s manager voluntarily followed the government’s request. It’s their choice. In contrast, § 2703(f) provides that providers have no choice but to comply. While the remedies for violations are unclear, the language of the regulation is a direct order: Providers “shall take all necessary steps to preserve records and other evidence for the government.”
So that’s why I can’t find Dalman persuasive. In a few days I will explain why I am not convinced colbert, anyone.
