A recent decision by the Tenth Circuit Court of Appeals reaches two conclusions: one obvious, and one not quite so obvious.
The defendant, Walter Ackerman, appealed the district court's denial of his motion to suppress evidence obtained through a warrantless search of his email. Unsurprisingly, the court finds [PDF] that the content of his emails are subject to Fourth Amendment protections. More surprisingly (and apparently to the government's complete surprise), it finds a private entity to be a government entity -- one unable to perform "private searches." (via FourthAmendment.com)
First, some background. Ackerman's AOL email account was flagged by the service provider when messages containing hashes known to be related to child porn images were discovered. AOL turned over the flagged email to the National Center for Missing and Exploited Children (NCMEC) as it is required to do by federal statute. NCMEC is the clearinghouse for any suspected child porn discovered by ISPs and works directly with law enforcement to locate suspects.
NCMEC is not a government entity. It is a nonprofit started and run (for the most part) by private citizens. However, it has additional duties imposed on it by Congress -- a total of "22 programs and services to assist law enforcement." The opinion details the close relationship NCMEC enjoys with the government, including the fact that 75% of its funding comes from the federal government and a number of government officials sit on its board. It also details the mandates Congress has handed to it, which require it to do exactly what it did in this case: confirm that flagged images were child porn and alert authorities.
Here we know Congress statutorily required AOL to forward Mr. Ackerman’s email to NCMEC; Congress statutorily required NCMEC to maintain the CyberTipline to receive emails like Mr. Ackerman’s; Congress statutorily permitted NCMEC to review Mr. Ackerman’s email and attachments; and Congress statutorily required NCMEC to pass along a report about Mr. Ackerman’s activities to law enforcement authorities. All at the government’s expense and backed by threat of sanction should AOL have failed to cooperate. All with special dispensation, too, to NCMEC to possess and review contraband knowingly and intentionally. This comprehensive statutory structure seems more than enough to suggest both congressional knowledge of and acquiescence in the possibility that NCMEC would do exactly as it did here.
NCMEC is also allowed to do something private citizens can't: retain and view child porn. While private citizens can come across child porn, preserve the evidence, and turn it over to law enforcement, they can't maintain a private database of images for cross reference like NCMEC does.
The government tried to argue that NCMEC's search of email given to it by AOL was a "private search," and therefore not subject to the Fourth Amendment. Private searches can be performed by almost anyone and these searches can sometimes be duplicated by a government agency without the need for a warrant.
AOL's hash-matching was a form of a private search, albeit a very cursory one that did not access the email's entire contents. It's somewhat the equivalent of a repair shop finding child porn while repairing a computer. In this case, AOL was required to give that information to NCMEC by federal law. NCMEC was required -- again by federal law -- to examine the images and determine the owner of the email account.
It's the insertion of federal law -- along with several other factors -- that turns a private nonprofit into a government agent. If NCMEC had done nothing more than confirmed the single image hash matched hashes in its database, it likely would have steered clear of this issue. But it opened the email and accessed three other attached images. A government agent can duplicate a private search without implicating the Fourth Amendment, but it has to remain within the confines of the original search. NCMEC's search went further than AOL's "private search" -- which only confirmed that one image matched hashes in the child porn database.
The government wanted to salvage the not-so-private search, but seemed completely confident that the appeals court would find in its favor. That's the only explanation for its lack of counterarguments when litigating on appeal. The appeals court, however, isn't obliged to make the government's arguments for it.
In the face of so much law and evidence suggesting NCMEC qualifies as a governmental entity, the government offers almost no reply. In fact, its only response is to question whether the question is properly before us.
Seeing the void left by the government, NCMEC offers a number of substantive responses to Mr. Ackerman’s entity theory in its own amicus brief. But ours is a party-directed adversarial system and we normally limit ourselves to the arguments the parties before us choose to present. Amici briefs often serve valuable functions, but those functions don’t include presenting arguments forgone by the parties themselves or effectively and unilaterally expanding the word limits established by rule for a favored party.
The NCMEC is a government entity for the purposes of investigating child porn tips. Even if it were to be considered a private entity, law enforcement would need a warrant to duplicate the searches it performs because NCMEC's investigative work goes beyond simply confirming hashes already flagged by ISPs. The government is not allowed to use private agencies to bypass warrant requirements. NCMEC can still do what it's statutorily required to do without violating the Fourth Amendment, but if law enforcement wishes to avail itself of the evidence the clearinghouse has obtained, it will need to obtain a warrant. The contents of the email accessed by NCMEC are protected by the Fourth Amendment.
No one in this appeal disputes that an email is a “paper” or “effect” for Fourth Amendment purposes, a form of communication capable of storing all sorts of private and personal details, from correspondence to images, video or audio files, and so much more.
Given the uncertain status of Jacobsen after Jones, we cannot see how we might ignore Jones’s potential impact on our case. And its impact here seems even clearer than in Jacobsen. After all, we are not dealing with a governmental drug test that destroyed but a trace amount of potential contraband. We are dealing instead with the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment.
So it seems that, whether we analyze the “search” question through the lens of the government’s preferred authority — Jacobsen and Katz — or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result: NCMEC conducted a “search” when it opened and examined Mr. Ackerman’s email.
The court notes that this finding does not immediately preclude the government from successfully battling the suppression motion on remand. There are a host of questions not answered here, mainly because the government decided not to raise them.
Surely hard questions remain to be resolved on remand, not least the question whether the third-party doctrine might preclude Mr. Ackerman’s claim to the Fourth Amendment’s application, a question the government has preserved and the district court and we have reserved. But about one thing we can be very certain. There can be no doubt that NCMEC does important work and that its work can continue without interruption. After all, it could be that the third-party doctrine will preclude motions to suppress like Mr. Ackerman’s. Or that changes in how reports are submitted or reviewed might allow NCMEC to access attachments with matching hash values directly, without reviewing email correspondence or other attachments with possibly private, noncontraband content — and in this way perhaps bring the government closer to a successful invocation of the private search doctrine. Or it may be possible that the government could cite exigent circumstances or attenuation doctrine or special needs doctrine or the good faith exception to excuse warrantless searches or avoid suppression in at least some cases.
But, it goes on to state, this doesn't mean the government should continue to consider NCMEC as operating outside of the confines of the Fourth Amendment and using the nonprofit's statutory mandates to skirt warrant requirements. Given the nature of the NCMEC's investigative work, there should be little standing between law enforcement officers and the proper permission to view NCMEC's collected evidence.
[E]ven if not a single one of these potential scenarios plays out — and we do not mean to prejudge any of them — we are confident that NCMEC’s law enforcement partners will struggle not at all to obtain warrants to open emails when the facts in hand suggest, as they surely did here, that a crime against a child has taken place.
The case goes back to the lower court to discuss the defendant's motion to suppress. No evidence has been suppressed at this moment because the district court never gave Ackerman the opportunity to present a motion, due to its acceptance of the government's "private search" theory.
It's certainly an interesting decision as there appears to be little precedent for this conclusion. The NCMEC has been an integral part in the fight against child pornography -- so much so that the federal government has drafted it into service, funds it, and sits on its board of directors. This close relationship has its benefits for the clearinghouse, but -- at least in this circuit -- it can no longer act on behalf of the government while simultaneously being used by the government as a "private" party for searches.