857 F. Supp. 2d 1015
S.D. Cal.2012Background
- AOL moves to quash a Rule 17 subpoena issued by Green seeking seven categories of AOL records related to reporting and handling of child pornography.
- Green seeks documents to support a Fourth Amendment challenge to AOL’s search of his private emails and to argue government action in the search.
- The information in the case concerns a 2252(a)(2) charge against Green for receiving images of minors engaged in sexually explicit conduct.
- An AOL/NCMEC reporting chain and related investigations are outlined, including a 2010-2012 timeline of reporting and surveillance activities.
- Rule 17(c) discovery is at issue; the court must determine if Nixon prerequisites justify production of the requested materials.
- The court grants AOL’s motion to quash the subpoena, finding Green fails to show AOL acted as a government agent and that discovery is warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nixon prerequisites justify Rule 17 discovery | Green claims the materials prove AOL acted with government involvement. | AOL contends the materials are not evidentiary, not uniquely unavailable, and not a proper fishing expedition. | No; prerequisites not satisfied; subpoena quashed. |
| Whether AOL acted as a government agent in searching Green’s email | Green asserts AOL’s reporting and cooperation with law enforcement makes it a government actor. | AOL argues it independently operates to detect threats; government did not direct or acquiesce in the specific search. | No; AOL did not act as a government agent for Fourth Amendment purposes. |
Key Cases Cited
- United States v. Nixon, 418 U.S. 683 (1974) (nexus for Rule 17 discovery prerequisites)
- United States v. Reed, 15 F.3d 928 (9th Cir. 1994) (two-part test for government agent private party searches)
- United States v. Richardson, 607 F.3d 357 (4th Cir. 2010) (mandatory reporting does not render private actor a government agent for Fourth Amendment purposes)
- Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989) (regulatory schemes do not automatically implicate Fourth Amendment rights)
- United States v. Walther, 652 F.2d 788 (9th Cir. 1981) (agency test depends on government acquiescence and motivation)