CASE ALERT

By: Ray Hill, Professor Emeritus, Santa Rosa J.C.

Electronic Service Providers (ESPs) are Not Acting as Agents of the Government When Using “Hashing Technology” to Detect Child Sex Crimes and Making Required Reports to Law Enforcement (U.S. v. Rosenow, 9USCA (Order and Opinion) #50052, 10/3/22)  

   The Legal Updates.com website site has previously posted several articles concerning Electronic Service Providers (ESPs) and Cyper Tips involving suspected child pornography and sexual exploitation of children on the Internet (See Bob Phillips - “The Private Search Doctrine and Computerized Hashing Technology” – LU Ref# CAC0054, 11/28/21, and Ray Hill - “Cyber Tip Information Contained in a Search Warrant Affidavit is Considered Reliable (Peo. v. Rowland, LU Ref# CAB00176, 9/18/22). Given the serious nature of these crimes and the advancing technology in this area, whether you work with a large agency with a specialized unit, on a designated task force, or you work for a generalist department, you may receive a Cyber Tip from the National Center for Missing and Exploited Children (NCMEC) that requires investigative follow up.

   The technology in place by Electronic Service Providers (ESPs), like Goggle, Facebook, and Yahoo, uses “hashing technology” to screen “chat” messages, photos, videos, images, etc., sent and received between persons on their systems in order to detect child exploitation and child. This involves the use of algorithms to map and reveal data related to these crimes. ESPs have investigations personnel who independently review “suspect data” for verification of criminal activity and to identify the sender/receiver.

   Two Federal statutes impact the storage and transfer of “suspect data”. The Stored Communications Act (18 USC Sect. 2703(a-f) requires ESPs to search accounts and preserve records or other evidence of child sexual exploitation or pornography pending a court order. The Protect Our Children Act of 2008 (18 USC Sect. 2258A (1-2) requires ESPs to report any facts or circumstances from which there is an apparent violation of specified child sex crimes. These Cyber Tips are then sent to the NCMEC who in turn forwards them to the appropriate law enforcement jurisdiction.

   So that brings us to Carsten Rosenow, whose hobby was take to sex tourism trips to the Philippines and engage in sexual activity with underage females. He would then post private (he thought) messages and videos about his travels and exploits to his buddies through Yahoo and Facebook.  His postings caught the eye of Yahoo investigations and through “hashing technology” he became of “person of interest”. Further investigation revealed Rosenow was in fact involved in crimes with underage females. This information was forwarded to the NCMEC who in turn contacted the FBI “Operation Swift Traveler Unit”. Amongst the information the FBI obtained was using the internet to seek out and arrange sex tourism locales, asking for photos of girls he was arranging to meet in the Philippines, and the posting of conversations of negotiations, photos and videos of sex acts with three underage girls. The FBI obtained subpoenas for subscriber and IP information. Rosenow was arrested at the airport upon return from his Philippines trip. Under authority of the search warrant, substantial evidence of criminal activity involving sex with prepubescent girls 10 to 15 years old was found on hard drives, thumb drives and micro-SD cards. Rosenow was convicted in Federal Court of sexual exploitation of a child and possessing sexually explicit images of children.

   So the defense appeal here is because ESPs are searching online private accounts and making reports to law enforcement, that they are agents of the police and covered by Fourth Amendment restrictions. The court made the logical conclusion here. Independent investigations by ESPs serve a legitimate business interest and mandatory reporting requirements did not convert them into governmental agents. There is an interest in detecting and purging child pornography and exploitation from the Internet and to maintain the integrity of ESP systems. There was no evidence that the FBI contacted the ESPs to have them view Rosenow’s files. Rather, the opposite. It was the ESPs who contacted the FBI fulfilling their legal obligation required under law. As well, under terms and conditions of use, an ESP account holder consents to the search, preservation and transfer of files involving illegal conduct to law enforcement.

   The forwarded NCMEC Cyper Tip information came from a reliable source and provided the probable cause (“fair probability” or “substantial chance”) there was evidence on Rosenow’s electronics devices. Their seizure upon arrest at the airport and further forensic examination was lawful.

   Rosenow will be a guest of the Federal Bureau of Prisons for a while!

Stay Safe,

RH