387 F. Supp. 3d 387
D. Vt.2018Background
- Two defendants (Coyne and Denault-Reynolds) moved to suppress evidence obtained after ESPs (Microsoft/Skype, Oath/Yahoo, Chatstep) identified images via PhotoDNA and submitted Cybertips to NCMEC, which forwarded tips to law enforcement.
- PhotoDNA produces hash “fingerprints” of known contraband images; ESPs used it to flag matches; larger ESPs performed human confirmation before reporting; Chatstep forwarded matches automatically without human review.
- NCMEC operates a Cybertipline, receives statutory recognition and funding, maintains a database of contraband hashes, and forwards tips to law enforcement; its staff sometimes reviewed images before referral.
- Law enforcement reviewed NCMEC-provided images, obtained warrants, searched the defendants’ homes, and seized child pornography; Denault-Reynolds additionally made statements about a thumb drive while being taken into custody.
- The court held evidentiary hearings and considered whether (1) NCMEC is a government actor, (2) the private-search doctrine shields NCMEC’s and law enforcement’s conduct, and (3) good-faith or other exceptions apply; it denied both suppression motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there a reasonable expectation of privacy in emails/texts? | Gov: generally privacy exists; warrants required for gov searches | Defs: ESP user agreements waive privacy | Court: Users retain Fourth Amendment expectation; service agreements do not eliminate it |
| Are ESPs government agents when they screen with PhotoDNA? | Defs: ESPs acted as government agents | Gov: ESPs are private, act for business reasons | Court: ESPs are private actors, not government agents |
| Is NCMEC a government entity or agent? | Defs: NCMEC functionally governmental (entity/agent) | Gov: NCMEC is private nonprofit clearinghouse | Court: NCMEC is not a government entity but acts as a government agent in partnership with law enforcement; its actions implicate the Fourth Amendment |
| Does private-search doctrine / good-faith save evidence when NCMEC or police review images? | Defs: NCMEC review violated Fourth Amendment; evidence should be suppressed | Gov: Private ESP human review renders subsequent NCMEC/police review permissible; good-faith applies to Chatstep-based tip | Court: When an ESP performed a human review before reporting, NCMEC/police review is within private-search exception; where no prior private human review (Chatstep), police opening the image violated Fourth Amendment but admission was allowed under the good-faith exception; Denault-Reynolds’ voluntary statement was admissible and not involuntary under due process |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (private search doctrine; later govt examination of privately opened item may be permissible)
- Walter v. United States, 447 U.S. 649 (govt exceeded scope of prior private search when it significantly expanded examination)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir.) (analysis treating NCMEC as closely tied to gov activity)
- United States v. Cameron, 699 F.3d 621 (NCMEC activities implicated Fourth Amendment)
- United States v. Richardson, 607 F.3d 357 (NCMEC/Government relationship and Fourth Amendment analysis)
- Heien v. North Carolina, 574 U.S. 54 (good-faith exception where officer’s mistaken but reasonable view of law applies)
- United States v. Aguiar, 737 F.3d 251 (2d Cir.) (good-faith exception application beyond reliance on warrants)
- United States v. Runyan, 275 F.3d 449 (examining whether police may examine more thoroughly materials already viewed by private parties)