I would beg to differ on that. The two copies are identical (or should be) and so a search of a copy without probable cause is in no way different from a search of the original and does not avoid the obligation on the government, in my opinion.
Imagine a time before information was digital. Are you saying that without probable cause, the government could come into your home, wheel in a large photocopier, photocopy every piece of paper that they find therein, and then leave, and then at their leisure go through the copy of all your paper documents, claiming that it was not an illegal search?
I think the decision gets the “copying isn’t seizing” part right.
I don’t think the Terms of Service are particularly relevant here provided that the Terms of Service don’t go beyond saying that the company will comply with any lawful demands. (The company has no choice and neither do you.) That means that the only issue is whether the demands are indeed lawful.
culminating in the June 21, 2017 arrest of Rosenow at the San Diego airport in conjunction with the execution of federal search warrants for the defendant, his baggage, and residence. The feds seized digital image and video files as evidence. Rosenow in 2020 was sentenced to 25 years in prison for child pornography offenses.
it is unclear why the government would persist with defending the original preservation order - except perhaps they saw an opportunity to find a weakness in the constitutional protections.
Presumably also they are already doing this on an industrial scale and it would impact negatively on other ongoing investigations where really good directly-, legally-obtained evidence is not available if this kind of preservation order were ruled illegal.
As the article says though:
These take-it-or-leave-it terms that no one reads are designed to protect companies’ business interests
If all companies have similar terms, it is hardly consent - and the terms in any case could be unconscionable. It is not as if you the customer and Big Tech are able to negotiate as equals.
I think the general debate regarding
What’s at issue here is whether the government can bypass Fourth Amendment obligations by delegating unsupported data preservation demands – effectively a seizure – to the private sector.
has a fair way to run. Outsourcing so as to bypass constitutional restrictions on how the government can act is an issue in a wide range of scenarios.