In April 2022, the Ninth Circuit affirmed a lower court’s decision that Electronic Service Providers (ESPs) were not acting as government agents when they searched a user’s accounts for child pornography and reported the material to the government. The decision in United States v. Rosenow largely mirrors that of other circuits. However, Judge Graber, in her dissenting opinion, parted ways with her colleagues when it came to one of these searches. With analysis that would have far-reaching implications, Judge Graber examined the ESPs’ user agreements and concluded that one of the ESPs crossed the threshold and acted as a government agent. The Ninth Circuit will likely consider whether to take this matter en banc.
In Rosenow, the Ninth Circuit rejected a defendant’s assertion that the ESPs acted as an “instrument or agent” of the government in searching the defendant’s accounts, holding that:
- The Stored Communications Act does not authorize ESPs to do anything more than access information already contained on their own servers and as dictated by their own terms of service. Here, the ESPs reported evidence of child sexual exploitation that they discovered on a user’s accounts to the National Center for Missing and Exploited Children (NCMEC) and federal law enforcement.
- The Protect Our Children Act does not serve as a mandate for ESPs to undertake searches —instead it mandates reporting should an ESP uncover evidence of criminal activity. Case law is clear that a mandate to report is significantly different than a mandate to search.
The majority relied upon the two-part test established in United States v. Cleaveland to determine whether there was a “sufficiently close nexus” between the ESPs conduct and the government, asking:
- Whether the government knew of and acquiesced in the intrusive conduct; and
- Whether the ESPs intended to assist law enforcement efforts or further their own ends.
Of interest, Judge Graber’s dissent focused on the close cooperation between law enforcement and the ESP involved, as well as the contents of the ESPs’ user agreements and business practices. Judge Graber examined whether these user agreements allowed the companies to unilaterally protect their legitimate business interests or if they required the assistance of law enforcement to do so.
- Judge Graber examined the first part of the Cleaveland test regarding whether the government knew of and acquiesced in the intrusive conduct. Judge Graber noted that government agents hosted several meetings with the ESP’s lead investigator, in which they received extensive information and took no action to discourage the searches or reports. On that basis, Judge Graber concluded that the government impliedly consented to the ESP’s activities and therefore “acquiesced” to them.
- As to the second part of the Cleaveland test, Judge Graber reasoned that the policy of one ESP allowed it to search user accounts whenever it had a good faith basis to do so, and its practice was to immediately suspend or delete accounts whenever problematic material was found. Here, upon receiving a request from the FBI, the ESP searched the user’s account, discovered child pornography images and excerpts from sexually exploitative conversations with minors, and unilaterally suspended the account. The ESP did not require the assistance of law enforcement to do so.Therefore, it was not acting as an instrument or agent of the government when it searched the user’s account.
- The policy of the other ESP, however, only allowed for the termination of a user’s account if it discovered actual images or videos of child pornography. Because the ESP did not store actual photographs or videos on its chat application, it could not independently verify the presence of child pornography and therefore could not close the user’s account under its policy. Judge Graber concluded that the only way the ESP could protect its reputational interest and prevent this conduct from continuing to occur was to report it to law enforcement and rely upon law enforcement to prosecute the user. Judge Graber found that the ESP’s interests were intertwined with and dependent on law enforcement—and therefore, the ESP acted as an instrument or agent of the government when it searched the user’s account.
Judge Graber’s dissent suggested that the two-part “sufficiently close nexus” test should be reconsidered en banc in light of technological developments since the test was first established decades ago. Should this be taken up by the Ninth Circuit sitting en banc, ESPs may want to consider changes to their user agreements to provide greater flexibility to disable user accounts.
 United States v. Cleaveland, 38 F.3d 1092, 1094 (9th Cir. 1994).
 Rosenow at 43 – 44.