50 F.4th 715
9th Cir.2022Background
- Carsten Rosenow arranged and traveled for child sex tourism in the Philippines using Yahoo Messenger and a Facebook account; Yahoo and Facebook internally investigated and reported suspected child-exploitation material to NCMEC, which forwarded CyberTips to the FBI.
- Yahoo’s internal probe (prompted by tips from other companies) identified Rosenow’s chats; Yahoo met with FBI/Homeland Security and filed multiple CyberTips; Facebook’s automated review (triggered by LEORS preservation/subpoena indicating “child safety”) found explicit files and submitted CyberTips.
- FBI Agent Cashman relied on Yahoo’s and Facebook’s CyberTips to obtain warrants; Rosenow was arrested returning from the Philippines and electronic-device searches uncovered extensive child pornography, including videos of Rosenow abusing minors.
- Rosenow moved to suppress evidence, arguing Yahoo and Facebook were government actors (Fourth Amendment), preservation requests/subpoenas were unconstitutional (invoking Carpenter), and the warrant lacked probable cause; the district court denied suppression.
- After a jury convicted Rosenow of attempted sexual exploitation (18 U.S.C. §2251(c)) and possession (18 U.S.C. §2252(a)(4)(B)), he challenged the jury instruction on the required mental state and the sentencing calculation; the Ninth Circuit affirmed in a majority opinion but Judge Graber dissented in part.
Issues
| Issue | Plaintiff's Argument (Rosenow) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Yahoo/Facebook acted as government agents when they searched accounts and reported to NCMEC | ESP searches were carried out at government direction or under statutory regime (SCA/Protect Our Children Act) and thus triggered Fourth Amendment protection | ESPs acted voluntarily under private policies and statutory reporting does not convert private searches into state action | Majority: Not government actors; searches were private (no sufficient encouragement/participation by government) |
| Whether government preservation requests/subpoenas (and LEORS submissions) were unlawful seizures/searches (Carpenter challenge) | Preservation requests and subpoenas without warrant were seizures/searches violating Fourth Amendment; Carpenter requires warrants for third-party digital records | Preservation requests merely preserved data (no meaningful interference) and subpoenas sought non-content subscriber/IP data (no reasonable expectation of privacy under third-party doctrine) | Majority: Preservation requests not a seizure; subpoenas for subscriber/IP info not covered by Carpenter; no warrant required |
| Whether the search warrant affidavit lacked probable cause (warrant should be void) | Affidavit omitted pornographic images and relied on private searches; thus probable cause was lacking | Affidavit contained detailed message excerpts, Yahoo/Facebook investigative findings, and fair-probability statements sufficient for probable cause | Held: Affidavit established fair probability; warrant valid |
| Whether jury instruction on “for the purpose of” required but-for causation (mental state for §2251(c)) | “For the purpose of” requires but-for causation: producing a visual depiction must be the defendant’s sole purpose | “For the purpose of” denotes motive; dominant/significant/motivating purpose standard is appropriate | Held: Majority approved instruction requiring producing a visual depiction to be Rosenow’s dominant, significant, or motivating purpose (not sole/but-for) |
| Whether sentencing enhancements improperly treated simultaneous possession as multiple counts (multiplicity/Chilaca) | Enhancing for multiple victims punished same possession multiple times in violation of Chilaca and the Sixth Amendment | Guidelines require treating each exploited minor as a separate count when production/exploitation of multiple minors occurred | Held: Sentencing calculation proper under the Guidelines; enhancements for multiple exploited minors permitted and required |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (private searches implicate Fourth Amendment only when private party acts as government agent or with government participation)
- Skinner v. Ry. Labor Execs.’ Ass'n, 489 U.S. 602 (federal regulatory scheme can convert private searches to state action when government encouragement/compulsion is present)
- Carpenter v. United States, 138 S. Ct. 2206 (warrant required for prolonged cell-site location records; narrow carve-out to third-party doctrine)
- United States v. Cleaveland, 38 F.3d 1092 (9th Cir. 1994) (private utility search not government action where independent private motive existed)
- United States v. Forrester, 512 F.3d 500 (9th Cir. 2008) (no reasonable expectation of privacy in IP addresses/subscriber data)
- United States v. Battershell, 457 F.3d 1048 (9th Cir. 2006) (descriptions of images can support probable cause without including images)
- United States v. Chilaca, 909 F.3d 289 (9th Cir. 2018) (simultaneous possession of multiple images at a single time/place can constitute a single §2252(a)(4)(B) violation)