Sunday, August 7, 2016

Who's a government entity or agent? NCMEC, for one.

The National Center for Missing and Exploited Children (NCMEC) is both a government entity and a government agent for Fourth Amendment purposes. So says the Tenth Circuit in United States v. Ackerman, rejecting arguments to the contrary not only from the government, but also from amici NCMEC, Dropbox, Facebook, Google, Microsoft, Pinterest, Snapchat, and Twitter.

In Ackerman, AOL’s screening system flagged one of four images attached to an email as probable child pornography. AOL sent the email to NCMEC. NCMEC opened the email and all four images, confirmed that they appeared to be child pornography, determined the likely owner of the account, and sent the information to law enforcement. Thus:

     email--->AOL(filters email)--->NCMEC(opens email)--->law enforcement

Mr. Ackerman was charged with child pornography and moved to suppress the images, arguing that they were the fruit of a warrantless search that was not otherwise reasonable. The district court denied the motion, and the Tenth Circuit reversed.

Did NCMEC take government action when it opened the email and images?

Yes. As noted above, the Tenth Circuit held that NCMEC—which by statute has law enforcement powers "well beyond those enjoyed by private citizens"—is both a government entity and a government agent for Fourth Amendment purposes. The Court examines both the entity and agency questions in great detail, creating a useful primer for future cases. Practice note: Whether an actor is a government entity and whether it is a government agent are two different questions. Be sure to make and preserve both arguments in the district court.

Did NCMEC conduct a search when it opened the email and images?

Maybe,* either under a Katz reasonable-expectation-of-privacy theory (though the Tenth Circuit notes the "open question whether the Supreme Court’s so-called ‘third-party doctrine’ might undermine any claim to Fourth Amendment protections when someone (like Mr. Ackerman) engages a private agent (like AOL) to deliver his correspondence"), or under a Jones trespass theory. (Orin Kerr is not convinced of this latter theory.)

But didn’t NCMEC just repeat what AOL did when AOL screened the email and images?

No, the "private search doctrine" did not save the search here. Under that doctrine, a warrantless search may be saved (or labeled something other than a search) when it merely repeats the reported acts of a private party. Here, NCMEC did more than AOL did. AOL merely used an algorithm to screen one of four images attached to the email. NCMEC opened the email and looked at all four images. This action "exceeded rather than repeated AOL’s private search."

*The Tenth Circuit remands for further findings on this question.

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