United States v. Alexander Bebris
4 F.4th 551
| 7th Cir. | 2021Background
- In 2018 Alexander Bebris sent images of child pornography via Facebook Messenger; Facebook’s PhotoDNA hashing technology flagged three images as matches to known child-pornography hashes.
- Facebook employees reviewed the flagged images and submitted CyberTipline reports to the National Center for Missing and Exploited Children (NCMEC). NCMEC forwarded the reports to Wisconsin law enforcement.
- Wisconsin investigators identified an IP address tied to Bebris, obtained a warrant, seized devices, and discovered additional child‑pornography files; Bebris was charged in federal court.
- Bebris moved to suppress the evidence, arguing Facebook acted as a government agent (thus implicating the Fourth Amendment) and sought a Rule 17(a) subpoena to compel live testimony from a Facebook witness; Facebook produced declarations and the district court heard NCMEC testimony.
- The district court quashed the Facebook subpoena as cumulative, denied suppression (applying the private‑search doctrine and finding Facebook was not a government actor), and Bebris pleaded guilty reserving this appeal.
- The Seventh Circuit affirmed, holding the district court did not abuse its discretion in quashing the subpoena and correctly concluded Facebook acted as a private actor.
Issues
| Issue | Bebris's Argument | Government/Facebook's Argument | Held |
|---|---|---|---|
| Whether quashing the Rule 17(a) subpoena for live Facebook testimony was improper / violated the Confrontation Clause | Quashing deprived him of the ability to prove government agency and violated Sixth Amendment confrontation rights at the suppression hearing | Confrontation Clause does not apply to suppression hearings; the subpoena sought cumulative/fishing testimony; district court did not abuse discretion | Quash affirmed: Confrontation Clause inapplicable to suppression hearing; quash not an abuse of discretion because testimony would be cumulative |
| Whether Facebook acted as a government agent when it scanned/reviewed messages and reported to NCMEC (Fourth Amendment) | Facebook’s use of PhotoDNA and cooperation with NCMEC converted it into a government agent, so the search required a warrant | Facebook acted for independent business purposes to keep its platform safe; no government direction/acquiescence specific to Bebris; NCMEC cooperation was voluntary | Facebook was a private actor; private‑search doctrine applies; no Fourth Amendment violation |
| Whether the district court erred in finding no reasonable expectation of privacy in Facebook messages | Bebris argued he retained a reasonable expectation of privacy in private Messenger content | Facebook’s terms/community standards disclosed reporting of child exploitation and third‑party disclosures; court need not reach this issue given other holdings | Court did not decide this question as outcome rested on private‑search ruling; issue not necessary to affirm |
| Whether law enforcement impermissibly expanded Facebook’s private search (e.g., viewed images Facebook had not opened) | Argued law enforcement enlarged a private search when it reviewed images beyond what Facebook had seen | Government contended it did not expand scope or, alternatively, argument was waived | Argument waived on appeal (not pressed); district court’s findings on scope were sufficient and not reversed |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (private search doctrine: Fourth Amendment inapplicable to private searches)
- Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (state‑action/"fairly attributable" test)
- Pennsylvania v. Ritchie, 480 U.S. 39 (Confrontation Clause is principally a trial right)
- United States v. Koenig, 856 F.2d 843 (agency factors: government exercise/control and purpose test)
- United States v. Miller, 982 F.3d 412 (PhotoDNA scanning cases: scanning does not automatically make provider a government agent)
- United States v. Ringland, 966 F.3d 731 (similar holding re ISP scanning and private‑search doctrine)
- United States v. Ackerman, 831 F.3d 1292 (discussing NCMEC and agency questions)
- Stern v. U.S. Dist. Ct. for Dist. of Mass., 214 F.3d 4 (Rule 17 subpoena principles; not a vehicle for fishing)
- United States v. Hamdan, 910 F.3d 351 (abuse‑of‑discretion standard reviewing quashal of subpoenas)