United States v. Ackerman
296 F. Supp. 3d 1267
D. Kan.2017Background
- Ackerman, an AOL Mail user, sent an email with four image attachments; AOL's automated hash-based filter matched one image to known child pornography, terminated his account, and reported the email and attachments to NCMEC via CyberTipline.
- NCMEC analysts viewed all four images, concluded they appeared to be child pornography, and referred the matter to law enforcement.
- A federal grand jury indicted Ackerman for distribution and possession of child pornography; he moved to suppress the email and images as the product of an unlawful search.
- The district court originally denied suppression, finding AOL and NCMEC were not state actors or, alternatively, that any NCMEC review did not meaningfully exceed AOL’s private search.
- The Tenth Circuit reversed, holding NCMEC was a government entity or agent and that its review exceeded AOL’s private search, and remanded for further factual findings (noting open questions about the third-party doctrine, expectation of privacy, and good-faith).
- On remand, the district court held Ackerman lacked an objectively reasonable privacy expectation in the specific email/attachments after AOL terminated his account; alternatively, even if there were a Fourth Amendment violation, suppression was barred by the good-faith exception because NCMEC reasonably relied on the statutory CyberTipline scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonable expectation of privacy in the specific email and four attachments after AOL terminated account | Ackerman: he subjectively expected privacy in his email | Government: after AOL terminated the account under its TOS, Ackerman had no objectively reasonable expectation of privacy in that email/attachments | Court: Ackerman lacked an objectively reasonable expectation of privacy post-termination; no Fourth Amendment violation |
| Applicability of the good-faith exception to NCMEC’s review | Ackerman: statutory scheme here does not authorize warrantless searches; good-faith inapplicable | Government: NCMEC reasonably relied on Congress’s CyberTipline statutory scheme and exception for NCMEC to receive/forward contraband; good-faith applies | Court: Good-faith applies alternatively; NCMEC’s review was objectively reasonable reliance on statute, so suppression unwarranted |
| Whether law-of-the-case bars consideration of good-faith on remand | Ackerman: government waived or cannot relitigate good-faith because Tenth Circuit resolved related issues | Government: law-of-the-case doesn’t preclude addressing an issue not decided on appeal | Court: Law-of-the-case does not bar consideration because appellate court made no prior ruling on good-faith; court may decide it on remand |
Key Cases Cited
- Illinois v. Krull, 480 U.S. 340 (1987) (supreme court upheld exclusionary-rule inapplicability where officers reasonably relied on a statute later declared unconstitutional)
- Herring v. United States, 555 U.S. 135 (2009) (exclusionary rule’s deterrence rationale and limits on suppression)
- United States v. Leon, 468 U.S. 897 (1984) (good-faith reliance on a search warrant may defeat exclusionary rule)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) (appellate decision holding NCMEC was a government entity or agent and that its search exceeded AOL’s private search)
- United States v. Keith, 980 F. Supp. 2d 33 (D. Mass. 2013) (district court found NCMEC acted as government agent but declined to suppress under Krull-based good-faith reasoning)