Whether the Ninth Circuit's rigid multi-pronged test for determining government action in relation to electronic communication service providers comports with the Fourth Amendment

QUESTION PRESENTED In the context of electronic communications, a series of statutes give companies permission to access their users’ private correspondence, remove impediments to the companies’ review of users’ papers, and mandate they report certain findings to law enforcement. Here, law enforcement knew of and acquiesced to Yahoo’s repeated review and disclosure of its customer’s private correspondence. A divided panel of the Ninth Circuit held that this was not government action because the governing statutes rendered Yahoo’s searches and disclosures legal and, where the underlying private searches were legal, only “active participation or encouragement” by government would implicate the Fourth Amendment. However, this Court has held that the determination whether searches by a private party constitute government action for purposes of the Fourth Amendment depends upon “all the circumstances,” including any statutory structure enabling (and thereby encouraging) searches. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989). The question presented here is whether the Ninth Circuit’s rigid multi-pronged test for determining government action in relation to electronic communication service providers comports with the Fourth Amendment. ii STATEMENT OF RELATED CASES e United States v. Rosenow, No. 3:17-cr-3430WQH, U.S. District Court for the Southern District of California. Judgment entered March 3, 2020. ¢ United States v. Rosenow, No. 20-50052, U.S. Court of Appeals for the Ninth Circuit. Opinion and order denying rehearing en banc entered October 3, 2022.