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 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:
The court disagreed with the defendant’s assertion that he had a right to privacy under the Fourth Amendment when the government issued preservation requests and subpoenas for his digital data.
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’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.