United States v. Rosenow

50 F.4th 715

UNITED STATES of America, Plaintiff-Appellee,

v.Carsten Igor ROSENOW, AKA Carlos Senta, Defendant-Appellant.

No. 20-50052

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2021 Pasadena, California

Filed April 27, 2022

Amended October 3, 2022

Timothy A. Scott, Nicolas O. Jimenez, and Marcus S. Bourassa, McKenzie Scott APC, San Diego, California, for Defendant-Appellant.

Mark R. Rehe, Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Randy S. Grossman, United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Gregory L. Doll and Jamie O. Kendall, Doll Amir & Eley LLP, Los Angeles, California, for Amicus Curiae Oath Holdings Inc.

Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for Amicus Curiae Restore the Fourth, Inc.

Before: Susan P. Graber, Consuelo M. Callahan, and Danielle J. Forrest, Circuit Judges.

Order;

Opinion by Judge Forrest ;

Dissent by Judge Graber

ORDER

The Opinion filed on April 27, 2022, is amended as follows:

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              interfere with Rosenow's possessory interests in
              his digital data because they did not prevent
              Rosenow from accessing his account. Nor did
              they provide the government with access to any
              of Rosenow's digital information without
              further legal process. It also is worth noting that
              Rosenow consented to the ESPs honoring
              preservation requests from law enforcement
              under the ESPs' terms of use. Thus, we agree
              with the district court that these requests did not
              amount to an unreasonable seizure in violation
              of the Fourth Amendment.>.
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              information disclosed through CyberTips from
              the NCMEC.
              Additionally, there is no evidence in the record
              indicating that the government ever received
              any preserved copies of Rosenow's digital data
              from Yahoo. And although Facebook did
              produce Rosenow's digital data in response to a
              separate warrant, it was the month after
              Rosenow was arrested and searched upon
              returning from the Philippines. Given this
              timeline of events, any data that the government
              received from Facebook following issuance of a
              preservation request could not have resulted in
              the evidence that was previously obtained from
              Rosenow. Moreover, Rosenow has not
              demonstrated that the data that Facebook
              ultimately produced to the government came
              from a copy of his data maintained in response
              to a preservation request or that Rosenow
              deleted any of the information in his account
              such that it only could have come from a
              preserved copy.
              Accordingly, the record establishes that the
              ESPs' preservation of Rosenow's digital data
              had no effect on the government's ability to
              obtain the evidence that convicted him. And
              because Rosenow cannot show a causal
              connection to the government's preservation
              requests that would warrant suppression, we
              decline to reach the merits of his constitutional
              challenge to those requests>.

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The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED , and no further petitions for rehearing will be accepted.

FORREST, Circuit Judge:

Defendant Carsten Rosenow was arrested returning from the Philippines, where he engaged in sex tourism involving minors. Rosenow arranged these illegal activities through online messaging services provided by Yahoo and Facebook, and his participation in foreign child sex tourism was initially discovered after Yahoo investigated numerous user accounts that Yahoo suspected were involved in child sexual exploitation. Following a jury trial, Rosenow was convicted on one count of attempted sexual exploitation of a child, 18 U.S.C. § 2251(c), and one count of possession of sexually explicit images of children, 18 U.S.C. § 2252(a)(4)(B).

On appeal, Rosenow argues that the evidence seized from his electronic devices upon his arrest should have been suppressed because, among other reasons, Yahoo and Facebook (which also searched his accounts on its platform) were government actors when they investigated his accounts without a warrant and reported the evidence of child sexual exploitation that they found to the National Center for Missing and Exploited Children (NCMEC), in supposed violation of Rosenow's Fourth Amendment rights. He further argues that the district court improperly instructed the jury on the required mental state for his sexual exploitation charge and miscalculated the sentence on his possession charge. We have jurisdiction under 28 U.S.C. § 1291, and we affirm Rosenow's conviction and sentence.

I. BACKGROUND

A. Electronic Communication Services and Mandatory Reporting

Yahoo and Facebook are electronic communication service providers (ESPs) that provide online private messaging services. These services allow users to share instant messages, images, and videos that only the sender and recipient can see. Both companies have policies governing user privacy.

Yahoo's privacy policy during the relevant period stated that Yahoo "stores all communications content" and reserves the right to share that information "to investigate, prevent, or take action regarding illegal activities ..., violations of Yahoo's terms of use, or as otherwise required by law." Yahoo's internal practice was to terminate or suspend user accounts that contained child pornography images or videos, but communication about child pornography unaccompanied by offending images did not trigger these actions. During the events of this case, Yahoo Messenger, the specific service that Rosenow used, did not transmit "photographs or videos or other files shared between two users" over Yahoo's servers, so Yahoo did not store them.

Facebook's privacy policy likewise stated that it has the right to "access, preserve and share information when [it] ha[s] a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity." And it was Facebook's internal policy to search users' accounts anytime it received legal process indicating a "child safety" concern or suggesting that child exploitation materials might exist on its platform. If Facebook found content violating its terms of use, including child pornography, it performed a more extensive investigation and took "appropriate action ... including removing the offending content or disabling the account."

The Protect Our Children Act of 2008 requires ESPs to report "any facts or circumstances from which there is an apparent violation of" specified criminal offenses involving child pornography. 18 U.S.C. § 2258A(a)(1)–(2). ESPs report to the NCMEC, a non-profit organization that is statutorily required to operate the "CyberTipline," which is an online tool that gives ESPs "an effective means of reporting internet-related child sexual exploitation." 34 U.S.C. § 11293 ; see 18 U.S.C. § 2258A(a)(1). NCMEC is required to make every "CyberTip" it receives available to federal law enforcement. 18 U.S.C. § 2258A(c)(1). ESPs that fail to report "apparent violation[s]" of the specified criminal statutes involving child pornography face substantial fines. Id. § 2258A(a)(1), (e).

B. Yahoo's Investigation and CyberTips

In September 2014, an online international money transfer company filed CyberTips and told Yahoo about ten Yahoo users who were selling child pornography produced in the Philippines. Yahoo connected those accounts to over a hundred other Yahoo user accounts selling child pornography and live-streaming sex acts with children in the Philippines. The following month, Yahoo filed a supplemental CyberTip report with the NCMEC and notified the FBI and Homeland Security Investigations (Homeland Security) about its report. Yahoo took the additional step of contacting law enforcement because it had determined "that there were children that were being actively exploited, and there were some users that seemed to be engaged in travelling to abused children or other types of activity like this that had some exigency" and Yahoo "wanted to be sure that law enforcement was aware that there were these children in danger and would be able to prioritize [Yahoo's] report over the other thousands of reports that [the government] might have received during that time period." That same month, Yahoo also met with the FBI and Homeland Security at the NCMEC to discuss Yahoo's internal investigation. Yahoo disclosed additional information regarding its suspicious users' accounts. The FBI's Major Case Coordination Unit (MCCU) subsequently opened its own investigation, "Operation Swift Traveler," to investigate Yahoo's evidence.

Yahoo remained suspicious that there were additional users involved in the criminal scheme it was uncovering. Continuing its own internal investigations, Yahoo later identified several hundred additional users who were selling or buying child-exploitation content from the Philippines. Rosenow was one of the users identified in these efforts. Yahoo determined that Rosenow was a buyer who regularly communicated with sellers about his child sex tourism in the Philippines. In December 2014, Yahoo filed another CyberTip and arranged a second meeting with federal authorities to discuss its continued internal...