197 A.3d 362
Vt.2018Background
- Defendant used an AOL account that was scanned by AOL’s Image Detection Filtering Process (IDFP), which matches MD5 hash values of attachments to a database of images AOL had previously reviewed and identified as apparent child pornography.
- When IDFP matched the file, AOL blocked delivery, preserved the account, and transmitted the full email, header, and attached file to NCMEC’s CyberTipline; AOL staff did not necessarily open the flagged file before reporting.
- NCMEC (a private nonprofit largely funded by federal grants) received the report, opened the attachment and email, used public tools to geolocate the IP to Rutland, Vermont, and forwarded the CyberTipline report to Vermont law enforcement via a secure network.
- An ICAC detective downloaded the NCMEC report, viewed the email and attachment, and prepared a warrant affidavit containing descriptions of the video, sender address, and IP/subscriber information; warrants led to searches and criminal charges against defendant.
- Defendant moved to suppress, arguing Fourth Amendment/Article 11 violations because AOL, NCMEC, or law enforcement opened materials without a warrant; trial court denied suppression and defendant appealed after a conditional plea.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AOL acted as a government agent when it scanned defendant’s transmissions. | State: AOL acted independently pursuant to private business interests and statutory reporting duties; not a government agent. | Lizotte: AOL’s reporting to NCMEC effectively served law enforcement and thus was government action. | AOL was not a government agent when it scanned transmissions with hashing tech. |
| Whether NCMEC acted as a government agent when it opened/viewed the email and attachment. | State: NCMEC is a private nonprofit with independent victim‑identification goals, not a government agent. | Lizotte: NCMEC’s role, statutory framework, federal funding, and forwarding to law enforcement make it a government agent. | NCMEC was acting as a government agent when it opened and viewed the materials. |
| Whether opening the attachment or email expanded AOL’s private search (private‑search doctrine). | State: Viewing the attachment did not expand AOL’s search because the hash match conveyed the same information; viewing the email may have expanded but was unnecessary for probable cause. | Lizotte: Neither AOL nor NCMEC had opened the items before NCMEC/law enforcement; opening either expanded the search and tainted the warrant. | Opening the attachment did not expand AOL’s search (hash showed prior AOL viewing). Opening the email did expand the search. |
| Whether the warrant should be invalidated due to the expanded search (email contents). | State: Even excluding email content, the affidavit contained independent probable cause (hash match, video description, IP/subscriber links). | Lizotte: The warrant was based on unlawfully obtained material from NCMEC and must be suppressed. | Warrant remains valid: lawful information independent of the email content provided probable cause. |
Key Cases Cited
- Walter v. United States, 447 U.S. 649 (1980) (Fourth Amendment protects against government searches; private searches generally not covered)
- United States v. Jacobsen, 466 U.S. 109 (1984) (private search doctrine: government may use information already exposed by a private search but may not expand its scope)
- Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (1989) (agency inquiry focuses on degree of government participation in private activity)
- United States v. Cameron, 699 F.3d 621 (1st Cir. 2012) (ISP scanning for child pornography was private action, not government search)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) (NCMEC acted as government agent when it opened and reviewed material forwarded by an ISP)
- United States v. Momoh, 427 F.3d 137 (1st Cir. 2005) (factors for evaluating whether private party acted to assist government in a search)