Electronic service providers like AOL voluntarily and automatically scan customers’ email transmissions and electronic storage spaces using sophisticated image detection and filtering programs to detect viruses, malware, and illegal images like child pornography. When such scanning reveals that a customer has accessed, transmitted or stored child pornography, the service provider is statutorily required to notify the National Center for Missing and Exploited Children (NCMEC). The NCMEC is obligated by law to then alert federal law enforcement, which can then lead to government investigation and serious criminal charges in state and federal court. Courts have almost uniformly rejected challenges to the search and seizure of child porn discovered in such instances, relying on the private actor doctrine, which excludes searches or seizures conducted by private actors from Fourth Amendment scrutiny.
A recent case decided by the Tenth Circuit Court of Appeals notably broke from the ranks in holding that the National Center for Missing and Exploited Children, the agency statutorily obligated to maintain the electronic “tip line” for services providers to report possible child pornography violations and to forward such “tips” to federal law enforcement, was acting as a governmental entity or agent when it searched the defendant’s email without a warrant.
Although the decision paves the way for future suppression motions in similar fact scenarios, there are some cautions. Most importantly, the government in that case failed to raise on appeal numerous legal arguments, such as attenuation, exigent circumstances or the good faith doctrine that may have provided the Court with a basis for finding that the NCMEC’s warrantless search might nonetheless still be considered reasonable. Additionally, at least one district court in New York has held that a defendant can be said to have consented to the search of his private emails by the Internet Service Provider in accepting the ISP’s terms of service. Those boilerplate terms explicitly advised that customers’ emails will be subject to automatic, systematic searches and referral to authorities if any illegal material is discovered.
Clients facing charges for possession or distribution of child pornography can be assured that the attorneys in the Law Offices of Robert G. Stahl are up to date and aware of all advances in the legal landscape to challenge evidence and hopefully obtain dismissal of criminal charges.