506 F.Supp.3d 907
N.D. Cal.
2020
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Background

  • Microsoft’s PhotoDNA automatically matched a OneDrive upload to known child‑pornography hashes; on Dec. 14, 2017 Microsoft sent a CyberTip to NCMEC including the image’s hash, a OneDrive username, and an associated IP address.
  • NCMEC reviewed the image, confirmed it depicted child pornography, and reported the IP owner as an office at California State University; NCMEC forwarded the CyberTip to local law enforcement.
  • SFPD Sgt. Christopher Servat received the CyberTip Jan. 2, 2018, applied for a warrant Jan. 4, and a California magistrate issued a warrant authorizing search of the OneDrive account and account records (including content and specified date range).
  • SFPD obtained OneDrive contents on Mar. 7, 2018; officers discovered over 500 child‑pornography images, documents naming “Wesley,” and selfies matching Wesley Bohannon; Bohannon was arrested Mar. 15, 2018 and later indicted.
  • Bohannon moved to suppress evidence derived from: Microsoft’s automated search, NCMEC’s actions, Servat’s visual inspection, and the SFPD’s warrant execution. The court denied the motion in full.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether Microsoft’s PhotoDNA search was government action Microsoft acted as a private actor (no government direction); alternatively, Bohannon consented via Microsoft’s Terms of Service Microsoft functioned as a government agent (relationship with NCMEC/PhotoDNA) so the Fourth Amendment applies Microsoft was not a government agent; even if it were, Bohannon consented via the ToS, so the search was lawful
Whether NCMEC’s IP‑matching and forwarding to police was a Fourth Amendment search NCMEC’s IP identification and forwarding did not invade any legitimate expectation of privacy and thus was lawful NCMEC assumed a law‑enforcement role and its investigation/search violated Fourth Amendment protections NCMEC’s actions did not violate the Fourth Amendment; matching an IP/forwarding info did not invade a legitimate expectation of privacy
Whether subsequent visual inspections (NCMEC/Servat) exceeded lawful scope Any inspection did not add intrusion because the image/hash already had been disclosed to a third party (Microsoft/NCMEC) and the information was effectively non‑private Visual inspections by NCMEC/Servat were separate warrantless searches exceeding Microsoft’s initial hash match Viewing the image constituted government use of non‑private information (no new Fourth Amendment intrusion); Servat’s inspection caused no further privacy intrusion
Whether the warrant lacked probable cause, was overbroad/insufficiently particular, or omitted material facts; whether good‑faith applies The warrant application, read as a whole, supplied probable cause to search the account and account records; particularity and scope were adequate; alternatively, officers relied in good faith The application omitted material facts (timing of Microsoft’s identification, IP‑owner detail), was overbroad and lacked a filtering protocol; suppression required Magistrate had a substantial basis for probable cause; particularity was sufficient; omissions were immaterial; in any event Leon good‑faith exception applies

Key Cases Cited

  • United States v. Jacobsen, 466 U.S. 109 (U.S. 1984) (private‑party searches do not trigger Fourth Amendment absent government agency)
  • Coolidge v. New Hampshire, 403 U.S. 443 (U.S. 1971) (test for when private action is government action)
  • United States v. Cleaveland, 38 F.3d 1092 (9th Cir. 1994) (dual‑motive and government‑involvement analysis)
  • United States v. Reed, 15 F.3d 928 (9th Cir. 1994) (private‑actor motive analysis)
  • United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) (NCMEC’s statutory law‑enforcement role and cooperation with government)
  • United States v. Tosti, 733 F.3d 816 (9th Cir. 2013) (governmental use of already non‑private information is not a new search)
  • United States v. Schesso, 730 F.3d 1040 (9th Cir. 2013) (probable‑cause in child‑pornography searches and retention inference)
  • United States v. Lacy, 119 F.3d 742 (9th Cir. 1997) (discussion of retention of child pornography)
  • Katz v. United States, 389 U.S. 347 (U.S. 1967) (warrant requirement for searches)
  • Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. 1973) (consent exception to warrant requirement)
  • Franks v. Delaware, 438 U.S. 154 (U.S. 1978) (material‑omission/false‑statement standard for warrant challenges)
  • United States v. Leon, 468 U.S. 897 (U.S. 1984) (good‑faith exception to exclusionary rule)
  • Groh v. Ramirez, 540 U.S. 551 (U.S. 2004) (particularity requirement for warrants)
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