Yahoo and Facebook Reports of Sex Crimes Were Not “Government” Acts

by | May 27, 2022

United States v. Rosenow aka Senta, 2022 WL 1233236 (9th Cir. 2022)

Carsten Igor Rosenow, aka Carlos Senta, used Yahoo and Facebook online messaging services to arrange child sexual encounters in the Philippines and was arrested as he returned to the U.S. from the Philippines. An online international money transfer company filed CyberTips and told Yahoo about Yahoo users selling child pornography produced in the Philippines. Yahoo connected those accounts to over 100 other Yahoo users selling child pornography and live-streaming sex acts with children in the Philippines.

Rosenow was one of the users identified in Yahoo’s investigation. Yahoo investigators were so alarmed at the horrific nature of the sexual exploitation that they also reached out to the FBI and Homeland Security Investigations to notify them about the CyberTips. Agents learned Rosenow had a Facebook account under a different name. The agent served a subpoena on Facebook for Rosenow’s “messages, timelines, photos, IP addresses, and machine cookies.” Facebook discovered child-exploitation content, immediately disabled Rosenow’s accounts and filed CyberTips.

Learning Rosenow had traveled to the Phillippines, the FBI arrested him upon his return. The searches of Rosenow’s electronic devices revealed significant child pornography, including numerous videos of Rosenow himself performing sex acts on prepubescent Filipina girls as young as 10 years old. The trial court convicted Rosenow for attempted sexual exploitation of a child and possession of sexually explicit images of children.

For Fourth Amendment purposes, the Stored Communications Act does not transform private searches by electronic service providers, such as Yahoo and Facebook, into government action.

Rosenow appealed, claiming the evidence seized from his electronic devices should have been suppressed because Yahoo and Facebook were government actors that violated his Fourth Amendment rights when they investigated his accounts without a warrant and reported the evidence. Rosenow claimed the government’s requests that Yahoo preserve records related to his private communications to arrange child rapes in another country were an unreasonable seizure. He also asserted he had a legitimate expectation of privacy in the limited digital data sought in the government’s subpoenas.

The appellate court affirmed both of Rosenow’s convictions, holding that, for Fourth Amendment purposes, the Stored Communications Act does not transform private searches by electronic service providers, such as Yahoo and Facebook, into government action and that the mandatory reporting statute, the Protect Our Children Act, did not transform reporting entities into government actors.

The court also upheld the sentence. The trial court sentenced Rosenow to 25 years, noting the young age of the girls and that the girls “did not seem to be willingly engaging in the activity.” The judge observed Rosenow “showed no sense of compassion for these kids or remorse or recognition regarding what he did.”

Reaction from privacy pundits was swift. Noted Berkeley Law School professor Orin Kerr wrote: “Holy crap: Although it was barely mentioned in the briefing, CA9 simply argued in a single sentence, in a precedent notice, that preservation of Internet content is not seizure, and TOS eliminate all privacy on the Internet.” Stanford research fellow Riana Pfefferkorn quipped, “Basically everybody should be freaked out by this ruling.”

Rosenow, a molecular biologist and former executive with the biotech giant Illumina, may well have the resources to pursue a petition for certiorari before the Supreme Court, or at least to request a rehearing en banc with the entire 9th Circuit Court of Appeals. If not, he’ll still have 25 years for pro se advocacy, and he is certain to garner broad support among tech privacy advocates.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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