Source: theregister.com 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.
So, if I copy a song or movie from a pirated source, they hold me responsible for taking something. However, the court just now said the same logic doesn’t apply to law enforcement. How in the world is this not a seizure? Because a copy was made? Seriously?
As if! There never was real privacy to the database driven infrastructure. That horse left the barn when interconnectivity opened the door. I’ve stated many times when it comes to cyber security you’re chasing your own tail, it just a fleeting perception.
This point has been laid bare by the court. With Internet use one essentially surrenders jurisdictional sovereignty. This is how its always worked when one uses to property of others to communicate or assemble. I often wonder why folks would make guys like Zuckerberg very rich by offering him free labor and content creation? All of which can be scraped off and used for whatever analysis. Sure most went be their own choice, but I seriously doubt they new all of the collateral consequences of airing out grievance or other mundane material on a World wide scale.
Here is more on this topic by The Electronic Frontier Foundation.
Right to privacy or this call may be monitored for quality assurance or many monitoring attempts such as cookies and other terms of agreement. What are they monitoring? Who is copying who with these terms. Who is coveting who in this protecting or who is provoking who.
Leave it up to wiz kids playing with Harvard law computer science when they should be back reading comic books. Guess someone took pride in the invent of the cell phone that everyone carries today. There is no privacy on the internet and as many of you all on here say F….it but if you say F… it to the wrong crowd that could land one up in jail even the gathering of porn on someone’s computer or could that porn sexual images be of teens or adults. Are governments or internet sites misleading or backbiting today to save face in many ways? Are these internet terms all about saving their site from embarrassment and/or monetary damage. Its like let the buyer beware.
Sure Tim can talk about Zuckerburg or other players in this internet spectrum of coveting attempts as a whole but in the long run who is guilty of this point factor. While the point is their is no privacy on the internet in these type cases like sex offenses or any other offense the proof is still in the pudding. Yes guidelines are vague and misleading and like some underlining of a beware of falling trees issue whether they fall or not. Sure porn rings can be the big thing from the high end of the registry to the low end or does abuse come in all stages. Course their is always downfalls to everything even internet encounters. At times one wonders what self incrimination is. Who is overriding who in this password age.
Not surprising, unfortunately. I’ve watched a few Ninth Circuit oral arguments–and have always found Judge Consuelo Callahan as unbelievable arrogant, unlikeable, and unsophisticated. In fact, I dare say Callahan, who always seems to be wearing two inches of makeup, is probably, by far, the most unlikable of all the judges. She, along with Judge Danielle Forrest (who almost seems like Callahan’s equally unlikable clone), is almost always removing as much civil rights as possible. Callahan and Forrest are W. Bush and Trump appointees, respectively. 🤷
It’s pretty scary how our country is on a slippery slope to Orwell 1984. My idealist side believes we can still save the country and defend the Constitution and civil rights. But it seems all the “leaders” being appointed to positions of power are too corrupt to defend the Constitution they swore an oath to “support and defend.”
I hope our recent SORNA challenge doesn’t end up in the hands these robe-wearing fascists!!!
What does anyone want to bet that this same court would have found a 4th Amendment violation if the guy were accused of, say, embezzlement or insider trading?
It seems to me that judges mostly lose their reasoning when sex crime is involved.
This question of 4th Amendment Violation was brought up when the FBI was accessing the Clinton emails without a warrant. If I recall correctly the reason this issue wasn’t pressed was because the FBI didn’t press criminal charges against Hillary. Imagine what would happen if they did?
My feeling is that if the FBI did pursue charging Hillary back then the defense could mount a 4th Amendment violation argument against the prosecution and win, thereby setting future precedents and we would no longer be dealing with these cases anymore. But that didn’t happen…:(
Maybe I am being a bit Obtuse, but since when after USA Patriot Act and probably a bit before has the “Internet” been something that is PRIVATE? I don’t believe that has ever been the case.
Another clear example of the need for SCOTUS to reconsider its Third Party Doctrine.
That Doctrine says the moment you release your personal effects to a Third Party, your 4th Amdt rights are null and void. That may have worked in the era of paper and at-home safes but it fails miserably in the digital age. Roberts even knows so, having spoken how his own daughters couldn’t care less is he goes thru their desks but hands off their phones. Gorsuch gets it, too.
There is a glimmer of hope that SCOTUS as a whole is starting to get it. A couple years back, it ruled in favor of a citizen who had his cell location data used against him for some burglaries. Under Third Party Doctrine, that’s perfectly fine and is simply a subpoena to the cell companies. And yet SCOTUS ruled against that notion.