9th Circuit: Data release did not violate defendant’s Fourth Amendment rights

Privacy/Cyber Risk & Data Security Courts Constitution Fourth Amendment

On April 27, the U.S. Court of Appeals for the Ninth Circuit concluded that limited digital data uncovered online that was not collected at the behest of the government did not violate the Fourth Amendment, which protects individuals from unreasonable government searches and seizures. According to the opinion, the defendant, who was convicted of child exploitation, argued that his Fourth Amendment rights were violated when two electronic service providers (ESPs) investigated his accounts without a warrant and reported the evidence of child sexual exploitation. He further maintained that evidence seized upon his arrest should have been suppressed because the ESPs were “acting as government agents when they searched his online accounts,” and that “he had a right to privacy in his digital data and that the government’s preservation requests and subpoenas, submitted without a warrant, violated the Fourth Amendment.” 

The 9th Circuit disagreed, concluding first that the federal Stored Communications Act and the Protect Our Children Act “transformed the ESPs’ searches into governmental action” and “that the government was sufficiently involved in the ESPs’ searches of the defendant’s accounts to trigger Fourth Amendment protection.” The appellate court also determined that the government’s preservation requests for the private communications did not amount to unreasonable seizure and that “the defendant did not have a legitimate expectation of privacy in the limited digital data sought in the government’s subpoenas, where the subpoenas did not request any communication content from the defendant’s accounts and the government did not receive any such content in response to the subpoenas.” Moreover, the 9th Circuit stated that the defendant agreed to terms of use that granted the ESPs’ contractual rights under agreed upon privacy policies “to investigate, prevent, or take action regarding illegal activities,” and consented to the ESPs honoring of preservation requests from law enforcement.