United States v. Rosenow
| Decision Date | 27 April 2022 |
| Docket Number | 20-50052 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carsten Igor ROSENOW, aka Carlos Senta, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Timothy A. Scott, Nicolas O. Jimenez, and Marcus Bourassa, Singleton Schreiber McKenzie & Scott, San Diego, California, for Defendant-Appellant.
Mark R. Rehe, 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.
Before: Susan P. Graber, Consuelo M. Callahan, and Danielle J. Forrest, Circuit Judges.
Opinion by Judge Forrest ;
OPINION
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.
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).
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 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.
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 sent three files that Facebook classified as "child pornography" and provided excerpts from Rosenow's conversations negotiating sex acts with three...
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