414 Wis.2d 532
Wis. Ct. App.2024Background
- Snapchat detected an uploaded video in Michael Gasper’s account that matched known child pornography via hash-based scanning (PhotoDNA), flagged it, and reported it to the National Center for Missing and Exploited Children (NCMEC) as required by federal law.
- NCMEC forwarded the CyberTip to Wisconsin law enforcement; a DOJ analyst and later Detective Schroeder reviewed the video after receiving it from Snapchat.
- Using information from viewing the video, Detective Schroeder obtained and executed a warrant at Gasper’s home, seizing devices and leading to Gasper admitting further illegal activity.
- Gasper was charged with ten counts of possessing child pornography and filed a motion to suppress all evidence, arguing that the warrantless review of the video was an unconstitutional search.
- The trial court granted the motion to suppress, holding that Gasper had a reasonable expectation of privacy in the Snapchat video, in light of his use of a private, password-protected cell phone account.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was law enforcement's warrantless review of the video a Fourth Amendment search? | Gasper had an objectively reasonable expectation of privacy in the private video in his Snapchat account. | The state argued that Gasper had no reasonable expectation of privacy due to Snapchat's terms and federal law. | No Fourth Amendment search occurred; Gasper lacked an objectively reasonable expectation of privacy in the Snapchat video. |
| Applicability of Riley and Carpenter | Gasper's privacy claim relied on precedents about cell phone and digital data privacy. | The state distinguished Snapchat's server review from phone or location data directly accessed from a device. | Court found those precedents inapplicable as Snapchat’s servers, not Gasper’s device, were searched. |
| Effect of Snapchat’s Terms of Service | Not specifically addressed. | Snapchat’s Terms and policies eliminated privacy expectations for prohibited content. | Snapchat’s terms and policies eliminated any expectation of privacy in content violating law or terms of service. |
| Suppression of downstream evidence | Evidence found from the warrant was fruit of original unconstitutional search. | Search was not unconstitutional; warrant and downstream evidence proper. | Because the original viewing was not a search, all evidence is admissible; suppression reversed. |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (cell phone searches require a warrant under the Fourth Amendment)
- Carpenter v. United States, 585 U.S. 296 (access to historical cell site data requires probable cause)
- United States v. Jacobsen, 466 U.S. 109 (defines a Fourth Amendment "search" as infringing on a reasonable expectation of privacy)
- State v. Bruski, 299 Wis. 2d 177 (Wisconsin framework for reasonable expectation of privacy analysis)
- State v. Baric, 384 Wis. 2d 359 (digital files shared on electronic platforms: privacy expectation factors)
- State v. Bowers, 405 Wis. 2d 716 (relevant "area" in privacy analysis is cloud account, not device)