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US appeals court ruling could ‘eliminate internet privacy’

Source: 4/28/22

Tech terms of service dissolve Fourth Amendment rights, EFF warns

The US Ninth Circuit Court of Appeals on Wednesday affirmed the 2019 conviction and sentencing of Carsten Igor Rosenow for sexually exploiting children in the Philippines – and, in the process, the court may have blown a huge hole in internet privacy law.

The court appears to have given US government agents its blessing to copy anyone’s internet account data without reasonable suspicion of wrongdoing – despite the Fourth Amendment’s protection against unreasonable searches and seizures. UC Berkeley School of Law professor Orin Kerr noted the decision with dismay.

“Holy crap: Although it was barely mentioned in the briefing, the CA9 just held in a single sentence, in a precedential opinion, that internet content preservation isn’t a seizure,” he wrote in a Twitter post. “And TOS [Terms of Service] eliminate all internet privacy.”

The case at issue, US v. Rosenow, begins in October, 2014, when online money transfer service Xoom alerted Yahoo! to a number of Yahoo accounts involved in the buying and selling of child sexual abuse material. The convicted felon was formerly chief marketing officer for biotech biz Illumina.

 Yahoo! investigated, reported its findings to the National Center for Missing and Exploited Children (NCMEC) and subsequently involved the Federal Bureau of Investigation (FBI), and the Department of Homeland Security (DHS).

Law enforcement presented preservation requests to Yahoo! to preserve relevant user account data in October 2014, December 2014, and June 2015. Included therein were three financial transactions involving Rosenow.

Investigations by Yahoo! and law enforcement continued, culminating in the June 21, 2017 arrest of Rosenow at the San Diego airport in conjunction with the execution of federal search warrants for the defendant, his baggage, and residence. The feds seized digital image and video files as evidence. Rosenow in 2020 was sentenced to 25 years in prison for child pornography offenses.

Attorneys representing Rosenow sought to have the evidence obtained from the arrest disallowed by claiming that their client’s Fourth Amendment rights had been violated. They argued Rosenow had the right to privacy in his digital data. The government’s preservation requests – issued years before – and subpoenas submitted without a warrant, they said, violated Fourth Amendment protection against unreasonable search and seizure.

The appeals’ panel rejected the defense arguments and upheld the lower court’s conviction and sentencing.

The Ninth Circuit decision [PDF] says the government’s data preservation requests did not interfere with the defendants rights because the data was copied and the defendant was not deprived of it – there was no seizure.

Read the full article


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