United States v. Ackerman
2016 U.S. App. LEXIS 14411
| 10th Cir. | 2016Background
- AOL’s automated filter scanned an email from Walter Ackerman, matched one image’s hash to its child-pornography database, stopped delivery, and closed his account.
- AOL forwarded Ackerman’s email (a .eml file) with four attachments to the National Center for Missing and Exploited Children (NCMEC) via the CyberTipline; NCMEC opened the email and viewed all four attachments.
- A NCMEC analyst confirmed all four images appeared to be child pornography, NCMEC notified law enforcement, and a federal grand jury indicted Ackerman; Ackerman entered a conditional guilty plea reserving his suppression claim.
- Ackerman moved to suppress based on Fourth Amendment violations, arguing NCMEC was a government actor/agent and its warrantless opening of the email was an unreasonable search; the district court denied suppression.
- The Tenth Circuit reversed: it concluded NCMEC functions like a governmental entity/agent given statutory duties, governmental funding, embedded law-enforcement participation, and exclusive statutory roles; it also held NCMEC’s opening and viewing of the .eml file was a Fourth Amendment search not excused by the private-search doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NCMEC is a governmental entity | NCMEC performs statutory, exclusive law-enforcement functions, receives substantial federal funding, has government officials embedded, and thus is a government entity | NCMEC is a private nonprofit; amici arguments stress private funding and partnerships; government argued entity issue waived below | Court: NCMEC qualifies as a governmental entity (function over form); waiver argument rejected (Lebron governs preservation) |
| Whether NCMEC acted as a government agent for this search | NCMEC acted with government knowledge/acquiescence and intent to assist law enforcement under statutory scheme (mandatory reporting, exclusive CyberTipline duties, statutory exceptions to contraband laws) | Govt: even if statutory scheme exists, not enough to show agency in particular search; relied on prior cases like Poe | Court: NCMEC was the government’s agent — Congress’ encouragement, funding, statutory mandates and embedded law enforcement satisfy agency tests (common-law, Souza, Skinner) |
| Whether opening the .eml file and viewing attachments was a Fourth Amendment search | Opening and viewing private electronic correspondence and attachments is a search; NCMEC opened the email and viewed attachments beyond what AOL had inspected | Govt: private-search doctrine (Jacobsen) and third-party doctrines may negate a search | Court: Opening and viewing the .eml file was a search — private-search doctrine inapplicable because NCMEC exceeded AOL’s inspection and could have revealed non-contraband private information |
| Whether Jacobsen/private-search doctrine permits admissibility | AOL’s hash-match alone does not justify NCMEC opening the email; NCMEC’s viewing exceeded AOL’s search scope and risked revealing noncontraband facts | Govt: Jacobsen means government merely repeated private search and learned only contraband status, so no Fourth Amendment search | Court: Jacobsen inapplicable — NCMEC conducted a separate, broader search; even under Jones trespass theory the opening was a search |
| Remedy — suppression of evidence | Suppress evidence as fruits of warrantless government search | Govt did not raise exigent-, special-needs-, attenuation-, or good-faith-exception arguments on appeal (largely preserved for remand) | Court: Reversed denial of suppression and remanded for further proceedings; left other doctrines (third-party, exigent circumstances, good faith) for remand/resolution |
Key Cases Cited
- Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (examining public vs. private functions for governmental character)
- Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (statutory control, purpose, funding relevant to public-entity status)
- Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (government encouragement/participation can convert private actor into government agent for Fourth Amendment)
- United States v. Jacobsen, 466 U.S. 109 (private-search doctrine: when government merely repeats private search and learns only contraband status)
- United States v. Jones, 132 S. Ct. 945 (search may be found by trespass to protected effects, not only Katz privacy test)
- Ex parte Jackson, 96 U.S. 727 (opening mail as a Fourth Amendment search precedent)
- United States v. Poe, 556 F.3d 1113 (10th Cir.) (distinguishing licensing/regulation of private actors from government agency for particular search)
- United States v. Warshak, 631 F.3d 266 (6th Cir.) (recognizing Fourth Amendment protection for email contents)