FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U
NITED
S
TATES OF
A
MERICA
,
Plaintiff-Appellee,
v.
CARSTEN IGOR ROSENOW, AKA
Carlos Senta,
Defendant-Appellant.
No. 20-50052
D.C. No.
3:17-cr-03430-
WQH-1
OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted June 8, 2021
Pasadena, California
Filed April 27, 2022
Before: Susan P. Graber, Consuelo M. Callahan, and
Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest;
Dissent by Judge Graber
2 UNITED STATES V. ROSENOW
SUMMARY
*
Criminal Law
The panel affirmed a conviction and sentence 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), in a case in
which the defendant was arrested returning from the
Philippines, where he engaged in sex tourism involving
minors.
The defendant arranged these illegal activities through
online messaging services provided by electronic service
providers (ESPs) Yahoo and Facebook. His participation in
foreign child sex tourism was initially discovered after
Yahoo investigated numerous user accounts that Yahoo
suspected were involved in child exploitation.
The defendant argued that the evidence seized from his
electrical devices upon his arrest should have been
suppressed because Yahoo and Facebook were acting as
government agents when they searched his online accounts.
The panel rejected the defendant’s arguments (1) that two
federal statutes—the Stored Communications Act and the
Protect Our Children Act—transformed the ESPs’ searches
into governmental action, and (2) that the government was
sufficiently involved in the ESPs’ searches of the
defendant’s accounts to trigger Fourth Amendment
protection.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. ROSENOW 3
The defendant argued 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 panel disagreed. The panel held
(1) the government’s requests pursuant to 18 U.S.C.
§ 2703(f) that Yahoo preserve records related to the
defendant’s private communications did not amount to an
unreasonable seizure; and (2) 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.
The defendant argued that the government’s search
warrant affidavit failed to establish probable cause because
it did not include any images of child pornography or any
reasonable factual descriptions of such images. Rejecting
this argument, the panel concluded that the affidavit—which
described Yahoo’s internal investigation and the resulting
findings, as well as the information Facebook provided to
the National Center for Missing and Exploited Children after
searching the defendant’s accounts—established a fair
probability that child pornography would be found on the
defendant’s electronic devices.
The defendant argued that the jury was not properly
instructed on the § 2251(c) count—attempted sexual
exploitation of a child—because the instruction did not state
that the “purpose” element of § 2251(c) was satisfied only if
the government proved that he would not have acted but for
his desire to produce a visual depiction of the sexually-
explicit conduct. The panel saw no basis to conclude that
“purpose,” as used in § 2251(c), has a causal or results
requirement.
4 UNITED STATES V. ROSENOW
The defendant, who was convicted of a single count of
possession of child pornography involving the exploitation
of several child victims, argued that the district court
improperly sentenced him as if he had been convicted on
multiple possession counts. The district court increased his
base offense level pursuant to the Sentencing Guidelines’
multiple-count instruction set forth in U.S.S.G.
§§ 2G2.1(d)(1), 2G2.2(c)(1), which applies where more than
one minor is exploited in an offense in which the defendant
caused a minor to engage in sexually explicit conduct for the
purpose of producing child pornography. Distinguishing
United States v. Chilaca, 909 F.3d 289 (9th Cir. 2018), the
panel wrote that there was no impermissible double counting
here, as the enhancements were premised on separate
exploitative acts.
Judge Graber dissented only as to the question whether,
in conducting its searches of the defendant’s chat messages,
Yahoo was acting as an instrument or agent of the
government. Judge Graber applied the two-part test set forth
in United States v. Young, 153 F.3d 1079 (9th Cir. 1998) (per
curiam). As to the first prong, she wrote that the government
knew of and acquiesced in Yahoo’s intrusive conduct, and
she rejected the suggestion that this prong would be met only
if Yahoo’s conduct had been illegal. As to the second prong,
she wrote that Yahoo’s motivation to conduct the searches
was intertwined with, and dependent on, the government’s
enforcement of criminal laws.
UNITED STATES V. ROSENOW 5
COUNSEL
Timothy A. Scott (argued), Nicolas O. Jimenez, and Marcus
Bourassa, Singleton Schreiber McKenzie & Scott, San
Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney;
Daniel E. Zipp, Chief, Appellate Section, Criminal Division;
Randy S. Grossman, Acting 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.
OPINION
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).
6 UNITED STATES V. ROSENOW
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
UNITED STATES V. ROSENOW 7
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).
8 UNITED STATES V. ROSENOW
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.
UNITED STATES V. ROSENOW 9
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 investigation. In
December 2014 (and March 2015, and June 2015), the FBI
requested that Yahoo preserve the communications of its
users (including Rosenow) who were associated with
Operation Swift Traveler.
1
After filing its December 2014 CyberTip, Yahoo learned
that Homeland Security had arrested a prolific buyer of child
pornography through Operation Swift Traveler and did not
intend to conduct any further investigations. Concerned that
“a rather large portion of the Philippine webcam and sex
trafficking activity” had been missed, Yahoo conducted
further internal investigations of the arrested buyer’s texts
with sellers in the Philippines, and consequently discovered
more conversations between the sellers and Rosenow. In
these conversations, Rosenow repeatedly asked for pictures
of children whom he was arranging to meet for sex in the
Philippines. In some communications, he requested, and
appears to have received, lewd pictures from an adolescent
Filipina girl. Yahoo filed a CyberTip in December 2015
based on its additional information about Rosenow and other
users, and it met with the FBI at the NCMEC again in
February 2016 to discuss its recent internal investigations.
1
Under the Stored Communications Act, an ESP, upon receiving a
preservation request, “shall take all necessary steps to preserve records
and other evidence in its possession” for up to 180 days “pending the
issuance of a court order or other process.” 18 U.S.C. § 2703(f).
10 UNITED STATES V. ROSENOW
C. FBI Agent Cashman’s Investigation and Facebook’s
CyberTips
In early 2015, the FBI’s MCCU sent a lead about
Rosenow to Agent Colleen Cashman in the FBI’s San Diego
office. Between March 2015 and January 2017, Agent
Cashman received Yahoo’s initial CyberTips, but she did not
receive the December 2015 CyberTip. At some point before
January 2017, the FBI applied for a search warrant for
Rosenow’s Yahoo account, but the U.S. Attorney’s Office
stated that the basis for probable cause from Yahoo’s earlier
CyberTips “had become dated or stale.”
In January 2017, the MCCU sent Agent Cashman
Yahoo’s December 2015 CyberTip, which renewed her
investigation. Agent Cashman learned that Rosenow had a
Facebook account under a different name, and she sent
preservation requests to Facebook in January and May 2017
through its Law Enforcement Online Request System
(LEORS). In March and June 2017, she filed administrative
subpoenas through LEORS for Rosenow’s “[b]asic
subscriber information and IP log-in information” for both
of his user accounts and indicated that the case involved
“child safety.” Because Facebook automatically reviewed
user accounts whenever a LEORS request indicated a “child
safety” concern or suggested that child exploitation
materials might exist, Agent Cashman’s subpoenas triggered
Facebook’s review of Rosenow’s account activity, including
his “messages, timelines, photos, IP addresses, and machine
cookies.” Facebook discovered child-exploitation content
that violated its terms of use, immediately disabled
Rosenow’s accounts, and filed two CyberTips with
NCMEC.
NCMEC promptly forwarded Facebook’s CyberTips to
Agent Cashman. The CyberTips showed that Rosenow had
UNITED STATES V. ROSENOW 11
sent three files that Facebook classified as “child
pornography” and provided excerpts from Rosenow’s
conversations negotiating sex acts with three underage girls
in the Philippines. He told one girl that he wanted to video
their encounter, and he told another that he loved the nude
pictures he had taken of her during a previous encounter.
When Agent Cashman submitted her initial subpoena in
March 2017, she did not know that it would trigger
Facebook’s automatic internal searches. But she
acknowledges that, because she submitted this subpoena, she
received information from NCMEC about Rosenow’s
Facebook account that she could not otherwise have
obtained without a warrant.
2
In July 2017, Agent Cashman prepared affidavits
seeking search warrants for Rosenow’s person, baggage, and
home, relying almost exclusively on evidence in Yahoo’s
and Facebook’s CyberTips. The warrants sought evidence of
child pornography offenses and child sex tourism. Two days
later, with a search warrant in hand, the FBI arrested
Rosenow when he returned from a trip to the Philippines.
The FBI’s searches of Rosenow’s electronic devices
revealed significant child pornography, including numerous
videos of Rosenow himself performing sex acts on
prepubescent Filipina girls ranging from approximately 10
to 15 years old.
2
Agent Cashman’s second subpoena issued to Facebook in June
2017 related to a different user account that Rosenow did not use for his
illicit activities. This subpoena did not lead Facebook to file any
additional CyberTips.
12 UNITED STATES V. ROSENOW
D. District Court Proceedings
Rosenow was indicted for attempted sexual exploitation
of a child, 18 U.S.C. § 2251(c), possession of sexually
explicit images of children, 18 U.S.C. § 2252(a)(4)(B), and
travel with intent to engage in illicit sexual conduct,
18 U.S.C. § 2423(b). Rosenow moved to suppress all the
evidence obtained from Yahoo’s and Facebook’s searches of
his private online communications, arguing that the
companies “searched at the government’s behest” and,
therefore, their conduct was government action that violated
the Fourth Amendment’s warrant requirement. Additionally,
Rosenow claimed that the government’s preservation orders
and subpoenas were unlawful warrantless seizures under
Carpenter v. United States, 138 S. Ct. 2206 (2018), and that
the warrant used to search and seize his property was based
on information obtained in illegal searches and lacked
probable cause.
After a two-day evidentiary hearing, the district court
denied his motions. The court concluded that Yahoo and
Facebook both acted independently in investigating
Rosenow “pursuant to legitimate business purposes” of
excluding users involved in child abuse and exploitation and
that the companies’ compliance with the mandatory
reporting statute did not convert them into government
actors. As to the preservation orders, the court found no
Fourth Amendment violation because they “did not interfere
with [Rosenow]’s use of his accounts and did not entitle the
[g]overnment to obtain any information without further legal
process.” The court similarly found no Fourth Amendment
violation for the administrative subpoenas, concluding that,
“[u]nlike the location information in Carpenter,” Rosenow
“had no reasonable expectation of privacy in the subscriber
information and the IP log-in information [he] voluntarily
UNITED STATES V. ROSENOW 13
provided to [Facebook] in order to establish and maintain his
account.” Finally, the court concluded that the facts set forth
in the search warrant affidavit were sufficient to support
probable cause that evidence of child pornography offenses
would be found, and Rosenow failed to identify any
misrepresentations or material omissions to overcome this
finding.
In August 2019, Rosenow’s jury trial commenced on the
charges of attempted sexual exploitation of a child and
possession of sexually explicit images of children. Rosenow
stipulated that he knowingly possessed five depictions of
child pornography, including two video recordings of
himself engaging in sexually explicitly conduct with minor
girls. For the attempted exploitation charge, Rosenow
requested a jury instruction stating that the “purpose” mental
state element required for conviction was satisfied only if the
government proved that he “would not have acted but for his
desire to produce a visual depiction of the sexually-explicit
conduct.” The district court rejected his proposed instruction
and instead instructed the jury that the government had to
prove that “producing a visual depiction of a minor engaged
in sexually explicit conduct” was Rosenow’s “dominant,
significant or motivating” purpose, not that it was his “sole
purpose.” The jury convicted Rosenow on both charges.
At sentencing, Rosenow objected to his Presentence
Report’s sentencing calculation as multiplicitous, arguing
that he was convicted of only one count of possession but
would be punished as if he had been convicted of four
separate counts, in violation of United States v. Chilaca,
909 F.3d 289 (9th Cir. 2018), and the Sixth Amendment. The
district court overruled Rosenow’s objection and held that
the multiple-count calculations were proper. Rosenow was
14 UNITED STATES V. ROSENOW
sentenced to 300 months’ imprisonment and lifetime
supervised release.
II. DISCUSSION
In reviewing a denial of a motion to suppress, we review
the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Vandergroen,
964 F.3d 876, 879 (9th Cir. 2020), cert. denied, 141 S. Ct.
1696 (2021). We also review de novo “whether a jury
instruction misstates the law,” United States v. Rodriguez,
971 F.3d 1005, 1012 (9th Cir. 2020), and whether the district
court correctly interpreted and applied the Sentencing
Guidelines, United States v. Martinez-Rodriguez, 472 F.3d
1087, 1094 (9th Cir. 2007).
A. Search and Seizure Issues
1. Were the ESPs an “instrument or agent” of the
government?
The Fourth Amendment guarantees the right to be free
from “unreasonable searches and seizures.” U.S. Const.
amend. IV. The Fourth Amendment regulates only
governmental action; it does not protect against intrusive
conduct by private individuals acting in a private capacity.
United States v. Jacobsen, 466 U.S. 109, 113 (1984). The
Constitution does, however, “constrain[] governmental
action by whatever instruments or in whatever modes that
action may be taken.” Lebron v. Nat’l R.R. Passenger Corp.,
513 U.S. 374, 392 (1995) (internal quotation marks and
citation omitted). Thus, a private search or seizure may
implicate the Fourth Amendment where the private party
acts “as an agent of the Government or with the participation
or knowledge of any governmental official.” Jacobsen,
UNITED STATES V. ROSENOW 15
466 U.S. at 113 (internal quotation marks and citation
omitted).
“A defendant challenging a search conducted by a
private party bears the burden of showing the search was
governmental action.” United States v. Young, 153 F.3d
1079, 1080 (9th Cir. 1998) (per curiam). “Whether a private
party should be deemed an agent or instrument of the
Government for Fourth Amendment purposes necessarily
turns on the degree of the Government’s participation in the
private party’s activities, a question that can only be resolved
in light of all the circumstances.” Skinner v. Ry. Lab. Execs.’
Ass’n, 489 U.S. 602, 614–15 (1989) (internal quotation
marks and citations omitted).
Rosenow argues that the evidence discovered by Yahoo
and Facebook was obtained illegally and should be
suppressed because they were acting as government agents
when they searched his online accounts. His argument is
two-fold: (1) two federal statutes—the Stored
Communications Act and the Protect Our Children Act—
transformed the ESPs’ searches into governmental action,
and (2) the government was sufficiently involved in the
ESPs’ searches that they constituted governmental conduct.
Each argument fails.
a. Does federal law transform the ESPs’ private
searches into governmental action?
A federal regulatory scheme that authorizes and
encourages private searches may transform a private search
into governmental conduct. Id. at 614–16. Skinner
considered a facial challenge to the Federal Railroad
Administration’s regulations governing employee drug
testing by private railroads. Id. The regulations mandated
drug testing following a “major train accident,” but also
16 UNITED STATES V. ROSENOW
permitted railroads to drug-test employees in other specified
circumstances. Id. at 609–11. The Supreme Court held that
the regulations—even those that did not mandate drug
testing—implicated the Fourth Amendment because they
amounted to governmental “encouragement, endorsement,
and participation” in an otherwise private search. Id. at 615–
16. The Court emphasized that the regulations authorized
private railroad companies to perform drug tests, preempted
conflicting state laws and collective-bargaining terms,
prohibited the railroad companies from contracting away
their right to require the tests, required the companies to
report certain evidence derived from the tests, and prohibited
private employees from refusing to comply with the tests. Id.
at 615–16. Thus, by removing “all legal barriers to the
testing” and making “plain not only its strong preference for
testing, but also its desire to share the fruits of such
intrusions,” the Court held that the Federal Railroad
Administration had transformed private searches by private
companies into governmental action. Id. at 615–16.
Rosenow argues that, like the regulations in Skinner,
federal regulation of ESP searches and disclosures trigger
Fourth Amendment scrutiny because, taken together, the
Stored Communications Act authorizes ESPs to conduct
warrantless searches, see 18 U.S.C. § 2701(c), and the
Protect Our Children Act requires private parties to report
evidence derived from those searches to a government agent
or entity, see id. § 2258A.
3
As explained below, Rosenow’s
argument is unconvincing.
3
The district court did not address Rosenow’s claim that the
NCMEC is a governmental agent or entity for Fourth Amendment
purposes. There is good reason to think that the NCMEC is, on the face
of its authorizing statutes, a governmental entity under Fourth
UNITED STATES V. ROSENOW 17
The Stored Communications Act criminalizes
unauthorized searches of stored electronic communications
content, 18 U.S.C. § 2701(a)–(b), but expressly excepts
ESPs from liability. Id. § 2701(c)(1). This exception makes
sense; otherwise, ESPs would be unable to ensure that user
content does not violate the ESPs’ own terms of use. But
unlike the regulations at issue in Skinner, which explicitly
authorized railroads to administer drug and alcohol tests to
their employees based on “reasonable suspicion,” Skinner,
489 U.S. at 611, the Stored Communications Act does not
authorize ESPs to do anything more than access information
already contained on their servers as dictated by their terms
of service. See 18 U.S.C. § 2701(c); Orin Kerr, A User’s
Guide to the Stored Communications Act, and a Legislator’s
Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212
(2004) (“[E]ven if the Fourth Amendment protects files
stored with an [E]SP, the [E]SP can search through all of the
stored files on its server and disclose them to the government
without violating the Fourth Amendment.”).
Additionally, the Protect Our Children Act disclaims any
governmental mandate to search: § 2258A(f) provides that
this statute “shall [not] be construed to require” an ESP to
“monitor” users or their content or “affirmatively search,
screen, or scan for” evidence of criminal activity. 18 U.S.C.
§ 2258A(f). Mandated reporting is different than mandated
searching. Our caselaw is clear that a private actor does not
become a government agent simply by complying with a
Amendment doctrine. See United States v. Ackerman, 831 F.3d 1292,
1296 (10th Cir. 2016) (“NCMEC’s law enforcement powers extend well
beyond those enjoyed by private citizens—and in this way it seems to
mark it as a fair candidate for a governmental entity.”). For purposes of
this case, we assume, without deciding, that the NCMEC is a
governmental actor.
18 UNITED STATES V. ROSENOW
mandatory reporting statute. See Mueller v. Auker, 700 F.3d
1180, 1191–92 (9th Cir. 2012) (“[Hospital] did not become
a state actor simply because it complied with state law
requiring its personnel to report possible child neglect to
Child Protective Services.”); cf. Ferguson v. City of
Charleston, 532 U.S. 67, 81 (2001) (holding that disclosure
by medical professionals of “information that under rules of
law or ethics is subject to reporting requirements” does not
ordinarily violate the Fourth Amendment). Under both the
Stored Communications Act and the Protect Our Children
Act, Yahoo and Facebook are free to choose not to search
their users’ data. Therefore, when they do search, they do so
of their own volition.
Moreover, unlike the regulations in Skinner, which
prohibited railroad companies from contracting away their
right to require drug tests, 489 U.S. at 615–16, neither statute
at issue here prevents an ESP from contracting away its right
to search users’ communications. See United States v.
Stevenson, 727 F.3d 826, 830 (8th Cir. 2013). Thus, the
statutes do not have the “clear indices of the Government’s
encouragement, endorsement, and participation” sufficient
to implicate the Fourth Amendment. Skinner, 489 U.S.
at 615–16.
As a final note, persuasive authority also militates
against Rosenow’s argument: three of our sister circuits have
explicitly rejected the analogy of 18 U.S.C. § 2258A to the
railroad regulations at issue in Skinner. See United States v.
Miller, 982 F.3d 412, 424 (6th Cir. 2020), cert. denied,
141 S. Ct. 2797 (2021); United States v. Ringland, 966 F.3d
731, 736 (8th Cir. 2020), cert. denied, 141 S. Ct. 2797
(2021); Stevenson, 727 F.3d at 830; United States v.
Richardson, 607 F.3d 357, 364–67 (4th Cir. 2010); cf.
United States v. Meals, 21 F.4th 903, 907 (5th Cir. 2021)
UNITED STATES V. ROSENOW 19
(rejecting defendant’s argument that § 2258A transformed
Facebook into a government agent); United States v.
Cameron, 699 F.3d 621, 636–38 (1st Cir. 2012) (holding that
Yahoo’s statutory duty under federal law to report to
NCMEC “did not impose any obligation to search for child
pornography,” but “merely an obligation to report child
pornography of which Yahoo[] became aware.”).
Those courts compared the railroad regulations only to
§ 2258A of the Protect Our Children Act, and Rosenow
points both to this statute and to the Stored Communications
Act.
4
But as explained, the Stored Communications Act does
not mandate, encourage, or endorse private searches, and the
reasoning of our sister circuits reinforces our conclusion that
an ESP’s search of its users’ communications does not result
inevitably from governmental encouragement as opposed to
“private initiative.” Skinner, 489 U.S. at 615.
We hold that federal law did not transform Yahoo’s and
Facebook’s private searches into governmental action.
b. Was there sufficient government involvement in
the ESPs’ searches to implicate the Fourth
Amendment?
Even if federal law does not render searches performed
by private actors to be government conduct, a private search
still may implicate the Fourth Amendment if there is a
“sufficiently close nexus” between the government and the
private entity’s challenged conduct. See Jackson v. Metro.
4
Rosenow argues for the first time in reply that § 230 of the
Communications Decency Act also encourages ESPs to locate and
disclose criminal activity to the government. We decline to consider this
new argument. See CTIA-The Wireless Ass’n v. City of Berkeley,
928 F.3d 832, 850 (9th Cir. 2019).
20 UNITED STATES V. ROSENOW
Edison Co., 419 U.S. 345, 351 (1974). In assessing whether
a sufficient nexus exists, “the relevant inquiry is: (1) whether
the government knew of and acquiesced in the intrusive
conduct; and (2) whether the party performing the search
intended to assist law enforcement efforts or further his own
ends.” See United States v. Cleaveland, 38 F.3d 1092, 1094
(9th Cir. 1994) (internal quotation marks and citation
omitted).
i. Government knowledge and acquiescence
To satisfy the first requirement, the government must be
involved in the search “either directly as a participant or
indirectly as an encourager of the private citizen’s actions.”
United States v. Walther, 652 F.2d 788, 791 (9th Cir. 1981).
The government’s knowledge of a private search, by itself,
does not turn that search into one protected by the Fourth
Amendment—were that not the case, the Fourth
Amendment’s protections would cover a significant amount
of private conduct of which the government was simply
aware. Likewise, “[m]ere governmental authorization of a
particular type of private search in the absence of more
active participation or encouragement” does not trigger
Fourth Amendment protection. Id. at 792; see also Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 164 (1978) (“[M]ere
acquiescence in a private action” does not transform a
private actor into a government agent); Cameron, 699 F.3d
at 637 (“We will not find that a private party has acted as an
agent of the government simply because the government has
a stake in the outcome of a search.” (internal quotation marks
and citation omitted)). Nor do “de minimis or incidental
contacts” between the government and a private entity.
Walther, 652 F.2d at 791.
Here, the FBI knew about Yahoo’s ongoing internal
investigations into the use of its platform for sexual
UNITED STATES V. ROSENOW 21
exploitation of children in the Philippines, but, as the district
court found, there is no evidence that “law enforcement was
involved in or participated” in Yahoo’s investigations or that
“law enforcement sought or received any assistance from
Yahoo’s personnel in conducting its investigation outside of
legal process.” Yahoo’s conduct was permissible, and it did
not need approval from law enforcement to search
Rosenow’s account and share any content it found that
evidenced criminal activity. Yahoo had a contractual right
under the terms of its privacy policy, to which Rosenow
necessarily agreed, “to investigate, prevent, or take action
regarding illegal activities” or “violations of Yahoo’s terms
of use.” See Cleaveland, 38 F.3d at 1093–94 (finding
insufficient governmental action because the private entity
had the authority to search customer property under a
customer service agreement); United States v. Miller,
688 F.2d 652, 657 (9th Cir. 1982).
Nor was this a situation in which Yahoo was spurred into
investigating Rosenow by the government or in which the
government incentivized, directed, or encouraged Yahoo to
continue its investigatory efforts after Yahoo initially
informed law enforcement about its concerns related to some
of its users. Quite the opposite. The record shows that Yahoo
initiated its investigation due to information that it received
from another private company. And it continued in its efforts
primarily, if not entirely, because it was concerned that the
government might drop the ball and not take sufficient action
to address the ongoing sexual exploitation of children that
Yahoo had uncovered.
For its part, Facebook was not independently proactive
in searching Rosenow’s accounts in the same way that
Yahoo was, but it nonetheless acted volitionally when it
conducted its searches. As the district court found, the FBI
22 UNITED STATES V. ROSENOW
issued a preservation request stating that it had “child safety”
concerns related to Rosenow’s account, but it “did not
request that Facebook conduct any search or initiate any
internal investigation into Rosenow’s accounts.” Rather,
Facebook’s internal policies required it to review Rosenow’s
accounts for inappropriate material because Facebook had
received notice from law enforcement that conduct
threatening child safety could be occurring in Rosenow’s
accounts. The government’s preservation request triggered
Facebook’s internal investigation policy, but Facebook
independently chose to search Rosenow’s accounts and take
corrective action after discovering content that violated its
terms of use. Accordingly, we conclude that the
government’s involvement with Yahoo’s and Facebook’s
internal searches “was not so extensive as to trigger Fourth
Amendment scrutiny.” Cleaveland, 38 F.3d at 1094.
The dissent notes that the government did nothing to
discourage Yahoo’s internal searches and subsequent
reports. True, but that is immaterial here. The Fourth
Amendment does not require government officials to
discourage private actors from conducting searches that they
have a legal basis to perform. Compare id. (“There was no
reason why the detective should have restrained [the
employee] or discouraged him in his search because [the
employee] never exceeded his authority under the Customer
Service Agreement to go on to the property and inspect the
meter.” (cleaned up)); Miller, 688 F.2d at 657 (“Because
[private actor] had not proposed to do anything illegal, we
see no reason why the officers should have restrained him or
discouraged him from visiting [suspect’s] property.”) with
Walther, 652 F.2d at 793 & n.2 (finding acquiescence where
the government did not discourage an informant from
actively engaging in illegal searches with the expectation of
a reward); United States v. Reed, 15 F.3d 928, 932 (9th Cir.
UNITED STATES V. ROSENOW 23
1994) (finding acquiescence where the government “made
no attempt to discourage” a hotel owner from searching
“beyond what was required to protect hotel property.”).
The constitution limits the government. Nothing in our
precedent establishes that a private party becomes a
government actor simply because the government knows
about and does not prevent such party from engaging in
legally permissible conduct. This is particularly true where
government actors are not even present during the search. Cf.
Cleaveland, 38 F.3d at 1094; Reed, 15 F.3d at 932 (noting
the significance of a “legitimate motive” for “private
searches done in the presence of police officers” (emphasis
added)). In the circumstances presented here, the
government simply was not a “participant” or an
“encourager” of the ESPs’ private conduct. Walther,
652 F.2d at 791. In so holding, we do not suggest that
government knowledge and acquiescence is established only
if a private party’s conduct is illegal. We emphasize only that
unless a private party’s search is illegal or based on an
illegitimate motive, our precedent requires “active
participation or encouragement” by the government before
state action will be found. Id. at 792 (emphasis added).
ii. Private party’s intent
In analyzing the second requirement—the private party’s
intent in searching—we look to whether it acted to “assist
law enforcement efforts,” or whether it had a “legitimate,
independent motivation to further its own ends.”
Cleaveland, 38 F.3d at 1094 (internal quotation marks and
citation omitted). Under our precedent, a private party’s
interest in preventing criminal activity, on its own, is not a
legitimate, independent motivation to search. Reed, 15 F.3d
at 932 (“[I]f crime prevention could be an independent
private motive, searches by private parties would never
24 UNITED STATES V. ROSENOW
trigger Fourth Amendment protection.”); but see Cameron,
699 F.3d at 638 (“It is certainly the case that combating child
pornography is a government interest. However, this does
not mean that Yahoo cannot voluntarily choose to have the
same interest.”). However, as long as a legitimate,
independent motivation is established, “that motivation is
not negated by any dual motive to detect or prevent crime or
assist the police, or by the presence of the police nearby
during the search.” Cleaveland, 38 F.3d at 1094.
Here, the record establishes that Yahoo and Facebook
investigated Rosenow’s accounts to further their own
legitimate, independent motivations. See Young, 153 F.3d
at 1080–81. As the district court found, both companies have
legitimate business reasons for purging child pornography
and exploitation from their platforms, and they acted in
furtherance of those reasons when they investigated
Rosenow. Yahoo’s Director of Threat Investigations and
Intelligence testified that it is “very bad for [Yahoo’s] brand”
if its services are viewed as “a haven for child pornography
or child exploitation or sex trafficking.” He also stated that
“[r]idding our products and services of child abuse images is
critically important to protecting our users, our products, our
brand, and our business interests.” Finally, he stated that
Yahoo has a direct financial interest in keeping child
pornography off its platforms because Yahoo does not want
to lose advertising opportunities or be blocked from app
stores.
A Facebook analyst familiar with that company’s
internal search policies likewise explained that Facebook
“has a business purpose in keeping its platform safe and free
from harmful content and conduct . . . that sexually exploits
children,” which is why Facebook prohibits “content that
sexually exploits or endangers children.” She testified that
UNITED STATES V. ROSENOW 25
Facebook’s policy of conducting limited review of accounts
in cases indicating child exploitation is “to keep [its]
platform safe and so users will continue to use [its]
platform.”
This case is analogous to Cleaveland, where police
waited while an electricity company’s employee
investigated the meter of a customer that was suspected of
diverting power. 38 F.3d at 1093–94. The employee asked
the police to accompany him to the customer’s home
because of safety concerns and, “if his inspection uncovered
the likelihood of a power diversion, he wanted the police to
be able to get a warrant to search the house to confirm the
power theft.” Id. at 1093. Although the police used evidence
from the company’s search to obtain a warrant, we found
insufficient government action to implicate the Fourth
Amendment because, in part, the motive “to recover money
for [the electricity company’s] loss of power” was a
“legitimate, independent motive apart from” any interest in
“assist[ing] the police in capturing the power thief.” Id.
at 1094.
So, too, the ESPs’ desire to purge child pornography
from their platforms and enforce the terms of their user
agreements is a legitimate, independent motive apart from
any interest that the ESPs had in assisting the government in
apprehending Rosenow. In so holding, we again note that
our decision is consistent with each of our sister circuits to
have considered this issue. See Miller, 982 F.3d at 419
(“Companies like Google have business reasons to make
these efforts to remove child pornography from their
systems.”); Ringland, 966 F.3d at 736 (“Google did not act
as a government agent because it scanned its users’ emails
volitionally and out of its own private business interests.
Google did not become a government agent merely because
26 UNITED STATES V. ROSENOW
it had a mutual interest in eradicating child pornography
from its platform.”); Cameron, 699 F.3d at 638.
The dissent argues that Yahoo did not have an
independent motivation for searching Rosenow’s account
because, by failing to preserve images sent via its Messenger
service, Yahoo could not close the account under its user
agreement and, therefore, depended on law enforcement to
further its interests. Dissent at 40–42. We disagree.
First, it was not a foregone conclusion at the outset of
Yahoo’s search that it would not find any images that would
permit it to close Rosenow’s account without law
enforcement involvement. While Yahoo did not retain
images sent through its Messenger service during the
relevant period, it did retain its users’ Messenger profile
pictures and images sent by users through its email service.
Yahoo’s searches included these locations where images
were retained. In fact, during the search activity that
identified Rosenow, Yahoo found prohibited child-
exploitation images in other users’ email accounts and
Messenger profile pictures, and it disabled those users’
accounts without any involvement by law enforcement.
Second, a private party’s otherwise legitimate,
independent motivation is not rendered invalid just because
law enforcement assistance may further its interests.
5
5
In arguing otherwise, the dissent relies primarily on Ferguson,
532 U.S. at 82–84. However, Ferguson concerned warrantless searches
by state actors under the “special needs” exception to the warrant
requirement. There, a state hospital adopted a “Management of Drug
Abuse During Pregnancy” policy and attempted “to use the threat of
arrest and prosecution in order to force women into [substance abuse]
treatment.” Id. at 71–72, 84. Law enforcement had “extensive
involvement” in developing the policy. Id. at 84. Of course, under such
UNITED STATES V. ROSENOW 27
Cleaveland demonstrates this point. While the electric
company had a legitimate business interest in preventing
power theft, it specifically requested that law enforcement
be present when it inspected its customer’s meter in part
because it “wanted the police to be able to get a warrant and
search the house to confirm the power theft.” 38 F.3d at 1093
(emphasis added). This suggests that further action beyond
its inspection of the meter was needed to either prevent
further theft, recover against the customer, or both. Had the
electric company been able to accomplish its business
objective without assistance, it would not have needed law
enforcement at the ready to get a warrant and search the
customer’s home. Likewise, in Miller the private actor had
an independent interest in recovering his stolen trailer, but
he relied on law enforcement to act after he entered the
defendant’s property and located his trailer.
6
688 F.2d
at 657–58.
Our conclusion is also consistent with Reed because
there the hotel owner expressly admitted that his only
circumstances, the state may not rely on the “ultimate goal” of substance
abuse treatment to justify warrantless searches. But Ferguson is flatly
distinguishable from this case where a private actor is searching its own
platform consistent with the terms of its user contract.
6
Even if were we to accept the dissent’s position that reliance on
government assistance invalidates an otherwise legitimate, independent
motivation, law enforcement intervention was not Yahoo’s only
available means for preventing Rosenow from continuing to engage in
prohibited conduct. Yahoo’s Director of Threat Investigations and
Intelligence testified that the company has several ways to prevent child
exploitation on its platform: deactivating accounts; making law
enforcement referrals for arrests; and pursuing civil remedies, including
lawsuits and “direct requests that [it] serve[s] via process servers to get
people to stop engaging in activities.” Thus, Yahoo was not dependent
on the government to further its goals.
28 UNITED STATES V. ROSENOW
motivation for searching the defendant’s room was to “help
police gather proof that [the defendant] was using his room
to deal narcotics.” 15 F.3d at 931. Unlike in Cleaveland and
Miller, the hotel owner had no independent motivation for
searching his customer’s room. However, in invalidating the
search in that case, we indicated that if the hotel owner had
entered the room for an independent purpose—such as
ensuring that hotel property had not been damaged—and had
not searched “beyond what was required to protect hotel
property,” the search may not have been improper. See id.
at 931.
For these reasons, we conclude that there was
insufficient governmental involvement in Yahoo’s and
Facebook’s private searches of Rosenow’s accounts to
trigger Fourth Amendment protection.
2. Did the government’s preservation requests and
subpoenas violate Rosenow’s right to privacy?
Rosenow also argues 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. We disagree.
a. Were the preservation requests unconstitutional
seizures?
Acting pursuant to 18 U.S.C. § 2703(f), which requires
an ESP “to preserve records and other evidence in its
possession pending the issuance of a court order or other
process,” the government directed Yahoo on three separate
occasions to preserve records related to Rosenow’s private
communications. Rosenow contends that these requests
were an unconstitutional seizure of his property.
UNITED STATES V. ROSENOW 29
A “seizure” of property requires “some meaningful
interference [by the government,] with an individual’s
possessory interests in [his] property.” Jacobsen, 466 U.S.
at 113. Here, the preservation requests themselves, which
applied only retrospectively, did not meaningfully 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.
b. Was the subpoena an unconstitutional search?
In addition to the preservation requests, the government
issued subpoenas to Facebook for Rosenow’s basic
subscriber and IP information under 18 U.S.C. § 2703(c)(2).
Relying on Carpenter, Rosenow contends that, because
these subpoenas were issued without a warrant supported by
probable cause, they were unconstitutional searches.
In addition to cabining “physical[] intru[sions] on a
constitutionally protected area,” the Fourth Amendment
protects “certain expectations of privacy.” Carpenter, 138 S.
Ct. at 2213 (internal quotation marks and citation omitted).
“When an individual seeks to preserve something as private,
and his expectation of privacy is one that society is prepared
to recognize as reasonable, we have held that official
intrusion into that private sphere generally qualifies as a
search and requires a warrant supported by probable cause.”
Id. (internal quotation marks and citation omitted). However,
in what is commonly referred to as the third-party doctrine,
30 UNITED STATES V. ROSENOW
the Supreme Court “consistently has held that a person has
no legitimate expectation of privacy in information he
voluntarily turns over to third parties.” Smith v. Maryland,
442 U.S. 735, 743–44 (1979) (holding that the defendant had
no reasonable expectation of privacy in the phone numbers
he dialed from his home phone because he necessarily
shared those numbers with the phone company to make a
call); see United States v. Miller, 425 U.S. 435, 440–442
(1976) (holding that the defendant had no reasonable
expectation of privacy in his banking business records
because he voluntarily shared that information with the
bank).
In Carpenter, the Court declined to extend Smith and
Miller to a warrantless subpoena of cell phone site records,
which revealed the defendant’s location over the course of
127 days whenever he used his cell phone. 138 S. Ct.
at 2212–14, 2217. Instead, the Court held that the subpoena
seeking this information required a warrant, explaining that
“an individual maintains a legitimate expectation of privacy
in the record of his physical movements as captured through
[cell phone surveillance technology]” even if that
information is shared with third parties. Id. at 2217.
Recognizing the intersection between the third-party
doctrine and a separate line of cases addressing a person’s
expectation of privacy in physical location and movements,
the Court established that, “in the rare case where the suspect
has a legitimate privacy interest in records held by a third
party,” the government must obtain a warrant before issuing
a subpoena absent exigent circumstances. Id. at 2215–16,
2222–23. Rosenow argues that, under Carpenter, the
government’s subpoenas directing Facebook to disclose his
basic subscriber and log-in information violated the Fourth
UNITED STATES V. ROSENOW 31
Amendment because he has a legitimate expectation of
privacy in this digital data.
7
But Carpenter is distinguishable.
8
Unlike cell-site
location, which implicates a long line of precedent
recognizing a defendant’s reasonable “expectation of
privacy in his physical location and movements,” id. at 2215,
a defendant “ha[s] no expectation of privacy in . . . IP
addresses” or basic subscriber information because internet
users “should know that this information is provided to and
used by Internet service providers for the specific purpose of
directing the routing of information,” United States. v.
Forrester, 512 F.3d 500, 510 (9th
Cir. 2008); see also United
States v. Ulbricht, 858 F.3d 71, 97 (2d Cir. 2017),
abrogation on other grounds recognized by United States v.
Zodhiates, 901 F.3d 137, 143–44 (2d Cir. 2018);
9
United
7
Rosenow also argues that he has a reasonable expectation of
privacy in his private online messages. Because we conclude that
Yahoo’s and Facebook’s searches of his messages were not
governmental action, we need not reach this issue. See Jacobsen, 466
U.S. at 113.
8
The Court in Carpenter emphasized that its holding was narrow,
limited to the specific question presented in that case. 138 S. Ct. at 2220.
We decline to broaden the application of Carpenter to the novel
circumstances presented here.
9
In Ulbricht, the Second Circuit held first that it was bound by the
broad rule that a party has no privacy interest in any information
disclosed to third parties. 858 F.3d at 96–97. That court later recognized
that the Supreme Court has abrogated that rule, in part, in Carpenter. See
Zodhiates, 901 F.3d at 143–44; United States v. Chambers, 751 F. App’x
44, 46 (2d Cir. 2018). But Ulbricht also held, in the alternative, that even
if the broad rule were abrogated in the future, the disclosure of IP
addresses does not raise privacy concerns because “no reasonable person
could maintain a privacy interest in that sort of information.” 858 F.3d
at 97. We cite Ulbricht for that holding, which still stands.
32 UNITED STATES V. ROSENOW
States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016).
Specifically, in Forrester we analogized IP addresses and
email to/from lines to the “information people put on the
outside of mail,” which the Supreme Court has long held can
be searched without a warrant because it “is voluntarily
transmitted to third parties”; therefore, there is no legitimate
expectation of privacy in such information. 512 F.3d at 511.
This basic information differs from the content of email
messages and other private communications, which are
analogous to the sealed contents of mail, which the
government does need a warrant to search. Id.
Here, the subpoenas did not request any communication
content from Rosenow’s accounts, and the government did
not receive any such content in response to its subpoenas.
Everyone involved knew that additional legal process was
required before the government could obtain that
information. Thus, as in Forrester, Rosenow did not have a
legitimate expectation of privacy in the limited digital data
sought in the government’s subpoenas.
3. Did the search warrant lack probable cause?
Finally, Rosenow argues that the government’s search
warrant affidavit failed to establish probable cause because
it did not include any images of child pornography or any
reasonable factual descriptions of such images.
Probable cause exists if, “based on the totality of the
circumstances, there is a ‘fair probability’ that evidence of a
crime may be found.” United States v. Perkins, 850 F.3d
1109, 1119 (9th Cir. 2017) (citation omitted). Inclusion of
illicit images is not required to establish probable cause. “[A]
judge may properly issue a warrant based on factual
descriptions of an image.” United States v. Battershell,
457 F.3d 1048, 1052 (9th Cir. 2006).
UNITED STATES V. ROSENOW 33
Here, the government’s affidavit included excerpts from
Rosenow’s messages with adolescent girls in the
Philippines, demonstrating that he took and kept illicit
pictures and videos of his sex tourism. For example, in one
of Rosenow’s Facebook chats, he sends a girl nude photos
he had previously taken of her and states, “I am always
looking at your pictures on my phone . . . and I want more.”
In another chat, he negotiates sex acts with a girl and states,
“baby, I want to take a video too.”
The affidavit also described Yahoo’s internal
investigation and the resulting findings that Rosenow was
negotiating, purchasing, and producing images and videos of
child sexual exploitation, as well as the information that
Facebook reported to NCMEC after searching Rosenow’s
accounts. These descriptions include an account of
Rosenow’s communications with girls in the Philippines,
wherein Rosenow describes in graphic detail the sexual
activities that he wanted to do with them and confirms that
he wanted to record those activities.
In these circumstances, the omission of pornographic
images was not an intentional misrepresentation or material
omission. See Perkins, 850 F.3d at 1118–19 (finding agent
acted improperly by withholding images in his possession
and misrepresenting their content where there was a question
whether the images were pornographic). Nor were the FBI
agent’s multiple, detailed statements analyzing Rosenow’s
messages and travel patterns merely “boilerplate
description[s]” or “generalized statement[s]” of “a child
pornography collector.” Id. at 1120. Thus, we conclude, as
did the district court, that the affidavit supporting the search
warrant established a “fair probability” that child
pornography would be found on Rosenow’s electronic
devices. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
34 UNITED STATES V. ROSENOW
B. Jury Instructions
Rosenow argues that the jury was not properly instructed
on Count 1—attempted sexual exploitation of a child in
violation of 18 U.S.C. § 2251(c) and (e). A defendant
violates § 2251(c)(1) if he “employs, uses, persuades,
induces, entices, or coerces any minor to engage in . . . any
sexually explicit conduct outside of the United States . . . for
the purpose of producing any visual depiction of such
conduct.” 18 U.S.C. § 2251(c)(1) (emphasis added).
Rosenow requested an instruction stating that the “purpose”
element was satisfied only if the government proved that he
“would not have acted but for his desire to produce a visual
depiction of the sexually-explicit conduct.” The district court
rejected Rosenow’s proposed instruction and instead
instructed the jury that the government must prove that
“producing a visual depiction of a minor engaged in sexually
explicit conduct” was Rosenow’s “dominant, significant or
motivating” purpose, not that it was his “sole purpose.”
Rosenow argues that the statutory phrase “for the
purpose of” requires proof of both motive and but-for
causation. He analogizes § 2251(c) to laws prohibiting
adverse employment actions “because of” or “based on”
discriminatory motives. See, e.g., Burrage v. United States,
571 U.S. 204, 213–14 (2014) (noting statutory phrases in
discrimination statutes indicate “but-for” causal links).
But-for causation is required “when a crime is defined in
terms of conduct causing a particular result.” Id. at 211
(internal quotation marks and citation omitted). In Burrage,
the Court analyzed a statutory penalty enhancement for drug
offenses where “death or serious bodily injury results from”
a defendant’s conduct. Id. at 206 (internal quotation marks
and citation omitted). The Court concluded that the “results
from” phrase required a causal link between the harm (death
UNITED STATES V. ROSENOW 35
or injury) and the proscribed conduct (drug offense). See id.
at 211–13. Likewise, employment statutes often link the
harm (adverse employment action) taken “because of” the
proscribed conduct (discriminatory motives). Id. But here,
the harm (production of obscene content) and the proscribed
conduct (enticing children to engage in it) are not connected
by any causal link in the text of the statute; rather, the harm
and the conduct are connected by the defendant’s “purpose.”
18 U.S.C. § 2251(c). Thus, we see no basis to conclude that
“purpose,” as used in § 2251, has a causal or results
requirement.
Our precedent further undermines Rosenow’s reading of
Burrage. In Rodriguez, albeit interpreting another statute,
we held that the “‘results from’ language evaluated in
Burrage differs materially from the ‘for the purpose of’
language . . . . The latter phrase concerns motive whereas the
former concerns causation.” 971 F.3d at 1010. Similarly, in
United States v. Lindsay, we found no “obvious error” where
the district court instructed the jury to apply the “dominant,
significant, or motivating” standard to an offense prohibiting
travel “for the purpose of” engaging in illicit sex. 931 F.3d
852, 864 (9th Cir. 2019).
In sum, we conclude that the jury was properly instructed
on Count 1.
C. Sentencing Calculation
Finally, Rosenow argues that the district court
improperly sentenced him as if he had been convicted on
multiple counts of possession of child pornography when he
was convicted on only one count.
When more than one minor is exploited in an offense
where the defendant “caus[ed], transport[ed], permit[ed], or
36 UNITED STATES V. ROSENOW
offer[ed] or s[ought] by notice or advertisement, a minor to
engage in sexually explicit conduct for the purpose of
producing [child pornography],” the Sentencing Guidelines
direct the district court to apply the guidelines applicable to
multiple counts “as if the exploitation of each minor had
been contained in a separate count of conviction.” U.S.S.G.
§§ 2G2.1(d)(1), 2G2.2(c)(1). At trial, Rosenow stipulated
that he knowingly possessed five depictions of child
pornography, including two videos showing himself
engaging in sexually explicit conduct with four different
minors. The jury convicted Rosenow of one count of
knowing possession “with intent to view, 1 or more books,
magazines, periodicals, films, video tapes, or other matter
which contain any visual depiction” of child pornography.
18 U.S.C. § 2252(a)(4)(B).
The district court found, based on Rosenow’s
stipulations at trial, that in committing the possession
offense, Rosenow caused a minor to engage in sexually
explicit conduct “for the purpose of producing a visual
depiction of that conduct.” U.S.S.G. § 2G2.2(c)(1).
Accordingly, the court applied the Sentencing Guidelines’
multiple-count instruction and calculated Rosenow’s
sentence based on the exploitation of four separate victims,
which increased Rosenow’s base offense level and doubled
his guideline range.
In arguing that this calculation was error, Rosenow relies
primarily on Chilaca, where we interpreted
§ 2252(a)(4)(B)’s prohibition against possession of “1 or
more” depictions of child pornography “to mean that the
simultaneous possession of different matters containing
offending images at a single time and place constitutes a
single violation of the statute.” 909 F.3d at 295. The
defendant in that case was charged with four counts under
UNITED STATES V. ROSENOW 37
§ 2252(a)(4)(B), but it was undisputed that he
simultaneously possessed all the images identified in the
four separate counts. Id. at 291, 295. Thus, we vacated three
counts as multiplicitous. Id. at 295, 297.
Chilaca does not control this case. The defendant in
Chilaca was charged with and convicted of four counts for
the single act of possessing “1 or more” depictions of child
pornography. Id. at 295. Here, Rosenow was convicted of a
single offense of possession which involved the exploitation
of several child victims. That is, there was no double
counting when the district court applied the Sentencing
Guidelines’ instructions regarding multiple minor victims,
as the enhancements were premised on separate exploitative
acts.
The Sentencing Commission “plainly understands the
concept of double counting, and expressly forbids it where it
is not intended.” United States v. Reese, 2 F.3d 870, 894 (9th
Cir. 1993) (quoting United States v. Williams, 954 F.2d 204,
208 (4th Cir. 1992)). But applying multiple enhancements
based on the same conduct is presumptively permissible
under the Sentencing Guidelines. See U.S.S.G. § 1B1.1
comment. n.4(B) (“Absent an instruction to the contrary,
enhancements . . . are to be applied cumulatively . . . [and]
may be triggered by the same conduct.”). And here, the
enhancement imposed is not only permitted by the
Sentencing Guidelines—it is required. Id. § 2G2.1(d)(1).
The Sentencing Guidelines’ application notes explain that
“each minor exploited is to be treated as a separate minor,”
“multiple counts involving the exploitation of different
minors are not to be grouped together,” and “each such
minor shall be treated as if contained in a separate count.”
Id. § 2G2.1 comment. 7.
38 UNITED STATES V. ROSENOW
Because the Sentencing Guidelines are clear that
punishment is to account for the number of child victims
exploited in the production of child pornography, we find no
error in the district court’s sentencing calculation.
AFFIRMED.
GRABER, Circuit Judge, dissenting in part:
With one exception, I concur in full in the majority
opinion. I agree with the majority opinion’s analysis of
Defendant’s challenges to the jury instructions and to the
sentencing calculation. I also agree with most of the
majority opinion’s analysis of the Fourth Amendment
issues. In particular, I agree that federal law alone did not
transform Yahoo’s or Facebook’s searches into
governmental action; that the government did not actively
participate in Yahoo’s or Facebook’s searches; that
Facebook’s searches did not implicate the Fourth
Amendment; and that the government’s preservation
requests and subpoenas did not violate Defendant’s right to
privacy. I part ways only as to the question whether, in
conducting its searches of Defendant’s chat messages,
Yahoo was acting as an instrument or agent of the
government. On that issue, I respectfully dissent.
“The Fourth Amendment limits searches conducted by
the government, not by a private party, unless the private
party acts as an ‘instrument or agent’ of the government.”
United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998)
(per curiam). “Whether a search is governmental or private
depends on: (1) whether the government knew of and
acquiesced in the intrusive conduct; and (2) whether the
UNITED STATES V. ROSENOW 39
party performing the search intended to assist law
enforcement efforts or further the party’s own ends.” Id.
1. Did the government know of and acquiesce in Yahoo’s
intrusive conduct?
Here, the government knew of and acquiesced in
Yahoo’s searches of chat messages. Beginning early in the
course of Yahoo’s investigation, government agents hosted
several meetings with Yahoo’s lead investigator, who
relayed to the government agents detailed and extensive
search results and independent analysis. In the very first
meeting, Yahoo’s investigator described to the government
agents the tools that Yahoo was using to view snippets of
private chat messages sent by individual users. The
government agents took no action to discourage the searches
or reports. Notably, the district court did not find that the
government lacked knowledge about, or failed to acquiesce
in, Yahoo’s searches.
The majority opinion, while agreeing that the
government knew about and failed to discourage Yahoo’s
searches, asserts that these facts are “immaterial.” Op. at 22.
Not so. Young asks “whether the government knew of and
acquiesced in the intrusive conduct.” 153 F.3d at 1080
(emphases added). The government’s implied consent to
Yahoo’s intrusive conduct is the very essence of
acquiescence.
The majority opinion also seems to suggest—despite its
assertion to the contrary—that this prong is not met because
Yahoo’s searches were legal and that the test would be met
only if Yahoo’s conduct had been illegal. Op. at 22–23.
That proposition is illogical; the government is more likely
to acquiesce in legal conduct than in illegal conduct.
Perhaps more to the point, the majority opinion’s suggestion
40 UNITED STATES V. ROSENOW
is contradicted by our precedents. In United States v.
Cleaveland, 38 F.3d 1092 (9th Cir. 1994), the employee’s
search was legal; nonetheless we held that “the police knew
of and acquiesced in [the employee’s] search of the meter at
Cleaveland’s house.” Id. at 1094. That is, the first prong
was met. The same is true of United States v. Miller, 688
F.2d 652 (9th Cir. 1982). The private party’s search was
legal, but we agreed that the police officers “knew of and
acquiesced in [the private person’s] conduct.” Id. at 657.
That is, the first prong was met.
2. Did Yahoo intend to assist law enforcement or to further
its own ends?
The second prong queries the private party’s motivation.
If the private party “had a ‘legitimate, independent
motivation’ to further its own ends,” then the search does not
implicate the Fourth Amendment. Cleaveland, 38 F.3d
at 1094 (citing United States v. Walther, 652 F.2d 788, 792
(9th Cir. 1981); United States v. Reed, 15 F.3d 928, 931 (9th
Cir. 1994)). That conclusion remains true even if the private
party had a “dual motive to detect or prevent crime or assist
the police.” Id. But if the private party had no “legitimate
independent motivation,” then the second prong—an
intention to aid law enforcement—is met. Reed, 15 F.3d
at 932.
Here, as the majority opinion explains, Facebook had a
legitimate, independent motivation in conducting its
searches. Op. at 24–25. Facebook’s terms of use prohibit
content that sexually exploits or endangers children, and
Facebook may close any account that violates the terms of
use. Indeed, as a result of Facebook’s searches of
Defendant’s account, Facebook did close his account.
UNITED STATES V. ROSENOW 41
The analysis of Yahoo’s searches of Defendant’s chat
messages differs. As the district court properly found,
Yahoo had a legitimate reputational interest in preventing its
services from being used to exploit or abuse children. But,
under the specific facts of this case, that legitimate interest
was dependent on—not independent from—governmental
action.
It is undisputed that, during the relevant period, Yahoo
did not store “photographs or videos or other files shared
between two users” via its Messenger chat application.
Indeed, any videos or images sent via the Messenger chat
application were “never transmitted [to] Yahoo servers, so
there was no record of any file transfer of videos or images
that would have been available for [Yahoo’s] review.” At
all relevant times, Yahoo’s policy allowed Yahoo to
terminate a user’s account on the ground of child
exploitation only if it discovered actual images or videos of
child pornography. Despite that clear limitation, Yahoo’s
investigators used internal tools to review Defendant’s “full
chat history on the Yahoo Messenger” and reported many
chat snippets verbatim to the government. Yahoo’s
investigators “determined that pulling the content, reviewing
it, and then filing [reports to the government] might be a way
to get the [suspected child-abuse] activity to stop.” When
asked whether the mechanism for stopping the activity was
helping to provide “probable cause” to federal law
enforcement, Yahoo’s lead investigator replied in the
affirmative. And he acknowledged that, although his team
did not exist “only . . . to have a bad guy arrested,” that is
one of the outcomes that the team strives for.
Putting it together, Yahoo’s review of Defendant’s chat
messages could not possibly have led to Yahoo’s termination
of Defendant’s account. The only means by which to
42 UNITED STATES V. ROSENOW
prevent Defendant’s unlawful conduct was (as the
government puts it) “inviting a law enforcement response”
and ensuring a successful prosecution. As the government
concedes in its brief: “Despite his misuse of its platform,
Yahoo never terminated [Defendant’s] Yahoo Messenger
account since no actual child pornography images were
found on it.” In other words, protecting Yahoo’s legitimate
reputational interest required the assistance of the federal
government. Cf. Ferguson v. City of Charleston, 532 U.S.
67, 82–84 (2001) (rejecting, as part of an analysis of the
“special needs” exception, the government’s attempt to
define the purpose of a search in terms of its “ultimate goal”
of helping women and children rather than its “immediate
objective” of generating “evidence for law enforcement
purposes”). The majority opinion states that Yahoo had
other available means to prevent Defendant from continuing
his activities on Yahoo. Op. at 27 n.6. That may be so in
theory, but Yahoo’s representative testified that Yahoo could
not shut down Defendant’s account for violating the
platform’s terms and conditions because there were no
images or videos of child pornography on any of his
accounts. The facts in some other case could differ and
could yield a different result, but in this instance Yahoo’s
legitimate motive was not independent. Yahoo could not, on
the particular facts of this case, achieve its legitimate
corporate objective without the prosecutorial efforts of law
enforcement.
Our decision in Cleaveland, 38 F.3d at 1093–94,
supports that conclusion. The power company in
Cleaveland suspected that a customer was diverting
electricity illegally, thus preventing the company from
collecting the full amount that the customer owed. Id.
at 1093. An employee for the power company entered the
defendant’s property to inspect the electricity meter, and he
UNITED STATES V. ROSENOW 43
discovered wires diverting electricity. Id. The employee
“had authority to do this pursuant to [the power company’s]
Customer Service Agreement.” Id. We concluded that the
private search did not implicate the Fourth Amendment for
the following reason: “While [the employee] may have had
dual motives for conducting the search—to recover money
for [the company’s] loss of power on the one hand, and to
assist the police in capturing the power thief (and perhaps
uncovering a marijuana grow) on the other—his motive to
recover for [the company’s] loss of power was a legitimate,
independent motive apart from crime detection or
prevention.” Id. at 1094 (emphasis added). Unlike in
Cleaveland, Yahoo’s reputational motive here in searching
Defendant’s chat messages was necessarily dependent on
law enforcement efforts. See also Reed, 15 F.3d at 932
(holding that, in opening a briefcase and dresser drawer, the
private party “had no legitimate independent motive within
the meaning of [this court’s] cases; ‘snooping’ is not a
legitimate motive and finding evidence of criminal activity
is not independent”).
The majority opinion suggests that Cleaveland and
Miller support its holding. Op. at 25–28. But the power
company in Cleaveland and the victim of theft in Miller
didn’t care—as far as the opinions suggest—whether the
government prosecuted the criminals. They just wanted the
money they were owed or the return of their stolen trailer.
What makes this situation different is that Yahoo had no way
to advance its reputational interest unless the government
prosecuted Defendant. And what makes this case more like
Reed is that, in practical terms, Yahoo’s motivation was to
help law enforcement gather proof for a prosecution. That
is, while Yahoo’s motive was without question legitimate, in
the circumstances it was not independent. Because Yahoo’s
motivation to conduct the searches was intertwined with, and
44 UNITED STATES V. ROSENOW
dependent on, the government’s enforcement of criminal
laws, the second prong of the “instrument or agent” analysis
is met with respect to Yahoo’s searches of Defendant’s chat
messages.
3. Conclusion
Because I conclude that Yahoo’s searches of
Defendant’s chat messages implicated the Fourth
Amendment, I would vacate the district court’s order
denying Defendant’s motion to suppress and remand for the
court’s consideration, in the first instance, all related issues,
including whether any error was harmless, whether the
good-faith exception applies, and whether suppression is an
appropriate remedy in this case.
In analyzing whether Yahoo acted as an “agent or
instrument” of the government, we are bound by our
precedents that establish the two-part test described above.
Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003)
(en banc). As a three-judge panel, we therefore may not
consider Defendant’s assertion that our test is too rigid and
fails to account for the considerable intrusiveness of Yahoo’s
searches. In an appropriate case, the en banc court might
consider whether our test—which developed in the context
of searches of, for example, a briefcase, an electricity meter,
or a single parcel of property—warrants reconsideration in
light of technological developments in the intervening
decades. Cf. Carpenter v. United States, 138 S. Ct. 2206,
2217–18 (2018) (considering in detail the differences for
Fourth Amendment purposes between cell phone tracking in
“the digital age” as “compared to traditional investigative
tools”); Riley v. California, 573 U.S. 373 (2014) (rejecting
the argument that prior precedent controlled the Fourth
Amendment analysis as to cell phones because “[t]hat is like
UNITED STATES V. ROSENOW 45
saying a ride on horseback is materially indistinguishable
from a flight to the moon”).
1
1
As an example pertinent here, in 1982, we held that the
government’s acquiescence in a private person’s physical search of a
parcel of land in Montana for a stolen trailer did not violate the Fourth
Amendment. Miller, 688 F.2d at 656–58. I wonder whether we likewise
would approve, as consistent with the Fourth Amendment, the
government’s acquiescence in a private person’s plan to use a bevy of
drones to search thousands of private parcels throughout the state.
