Criminal investigators commonly practice “Internet preservation” without cause. This involves directing providers to save a suspect’s entire Facebook or email account and hold it for the government. If probable cause is eventually developed, a warrant can be used to obtain the preserved account files. If no probable cause is found, the provider may delete the preserved records. This procedure is done under the Stored Communications Act, 18 U.S.C. § 2703(f).
I believe the Fourth Amendment limits Internet preservation. The act of preserving the account contents is considered a seizure, which must be justified as reasonable with initial suspicion before obtaining a warrant. I have argued this in my article, “The Fourth Amendment Limits of Internet Preservation,” and provided a model brief for defense attorneys to use.
Some motions to suppress have been filed based on my model brief. In cases where the government avoided reliance on the preserved account, courts did not rule on the merits. However, in cases where merits rulings were issued, the courts held that the Fourth Amendment was not violated. I find these rulings unpersuasive. This post discusses the case of United States v. Dallmann (D. Nev. May 25, 2024).
In Dallmann, the court held that Internet preservation does not raise Fourth Amendment issues because Internet providers acting on behalf of the government are private actors not subject to the Fourth Amendment. The court cited United States v. Rosenow to support this reasoning.
The court found that Google, when preserving the defendant’s gmail account for the government, was not a government agent. Google complied with the federal statute mandating preservation of records but did not search the content for evidence of a crime. Therefore, Google was not considered a government agent by merely preserving existing records. The court concluded that the Fourth Amendment was not implicated by Google’s actions.
While I appreciate the citation, I disagree with the court’s interpretation. The legal issue in Rosenow was not about whether the mere existence of certain statutes turned Internet providers into government agents.
The court in Rosenow determined that the statute did not transform provider actions into government actions. This ruling appears to be correct, as a statute imposing limits on provider actions does not automatically mean that every provider action is considered government action.
However, the issue at hand is different: When the government instructs a private company to act on its behalf, and the private company acts solely in response to the government’s instructions, are they considered government actors? It seems clear to me that they are. Even though the provider is complying with a federal statute mandating record preservation, the fact that they are being forced to comply by Congress still makes it a form of government action, as addressed by the Fourth Amendment.
Content preservation in response to a § 2703(f) letter meets the Fourth Amendment test for state action, as the government directly compels the private party to act on its behalf. The government instructs the provider to preserve records, making the provider act as the government’s agent. Case law examples further support this argument, showing that actions taken at the government’s request constitute state action.
In conclusion, providers following § 2703(f) requests can be considered state actors, as they are acting on behalf of the government. The mandatory nature of § 2703(f) further solidifies the argument for state action in these cases. This is why the argument presented in Dallmann is not convincing, and I will address my thoughts on Colbert in the near future.
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