United States v. Rosenow
Docket Number | 20-50052 |
Decision Date | 27 April 2022 |
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 S. Bourassa, McKenzie Scott APC, San Diego, California, for Defendant-Appellant.
Mark R. Rehe, Assistant United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; Randy S. Grossman, 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.
Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, Minnesota, for Amicus Curiae Restore the Fourth, Inc.
Before: Susan P. Graber, Consuelo M. Callahan, and Danielle J. Forrest, Circuit Judges.
;
The Opinion filed on April 27, 2022, is amended as follows:
The Petitions for Rehearing and Rehearing En Banc are otherwise DENIED , and no further petitions for rehearing will be accepted.
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...
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