United States v. Stratton
229 F. Supp. 3d 1230
D. Kan.2017Background
- Sony’s PlayStation Network (PSN) terms of service (Dec. 2008) authorized Sony to monitor user communications and disclose collected data to authorities; Sony enforces the policy via user "grief reports," a Moderation Team, and a Security Team.
- Sony received multiple grief reports about PSN user “Susan_14” between June 2012 and July 2013, reviewed messages and image downloads, and reported suspected child-exploitation materials to NCMEC in August 2012, December 2012, and July 2013.
- NCMEC reviewed Sony’s reports, determined that some files contained child pornography, and made the files available to law enforcement; subpoenas to Google and CenturyLink led to an IP address linked to defendant’s Burlington, Kansas residence.
- KBI/FBI agents obtained a search warrant for defendant’s residence (Nov. 1, 2013) based on Sony/NCMEC materials and subpoenas; execution of the warrant uncovered child-pornography images on defendant’s PS3 and defendant admitted ownership/use of the PS3.
- Defendant moved to suppress (1) NCMEC-acquired evidence, (2) evidence from the residence search, and (3) statements to officers, arguing Sony acted as a government agent, NCMEC exceeded Sony’s private search, and defendant had a reasonable expectation of privacy; court held the motion should be denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sony acted as a government agent when it searched PSN content | Government: Sony was a private actor; Fourth Amendment not implicated | Stratton: Sony acted with government acquiescence/consent (meeting with FBI, §2258 reporting) and thus was a government agent | Sony acted as a private entity; no evidence of government control or consent converting Sony into agent; Fourth Amendment did not apply to Sony’s search |
| Whether NCMEC exceeded scope of Sony’s private search (private-search doctrine) | Government: NCMEC only repeated Sony’s human-conduct search; did not exceed scope | Stratton: NCMEC later viewed/downloaded materials beyond Sony’s review (esp. Dec. 2012 and Jul. 2013 materials) | Court found Sony used human review (no hash filter) and NCMEC did not exceed Sony’s prior review; private-search doctrine not violated |
| Whether defendant had a reasonable expectation of privacy in PSN-stored content | Government: Terms of Service and Sony’s monitoring eliminated any objectively reasonable privacy expectation | Stratton: Still had privacy interest despite ToS (adhesion contract arg.) | ToS disclaimers and Sony’s monitoring practices removed any objectively reasonable expectation of privacy in stored PSN data; adhesion argument rejected |
| Whether suppression is required under Leon good-faith exception | Government: Even if violation occurred, agents relied in objective good faith on NCMEC/subpoena/warrant; suppression unwarranted | Stratton: Law enforcement’s reliance was tainted by potential prior unlawful searches (Murray analogy) | No evidence of deliberate/reckless police conduct or a facially deficient affidavit; officers reasonably relied on warrant; good-faith exception applies; suppression denied |
Key Cases Cited
- United States v. Jacobsen, 466 U.S. 109 (private-search doctrine and limits on governmental use of privately discovered information)
- United States v. Leon, 468 U.S. 897 (good-faith exception to exclusionary rule)
- United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) (NCMEC’s CyberTipline functions as governmental action for Fourth Amendment analysis)
- United States v. Walter, 447 U.S. 649 (private-party searches do not trigger Fourth Amendment but limits when government uses results)
- Kyllo v. United States, 533 U.S. 27 (reasonable-expectation-of-privacy test)
- Murray v. United States, 487 U.S. 533 (when evidence is product of prior illegal entry, later warrant may not cure taint)
- Herring v. United States, 555 U.S. 135 (exclusionary rule deters deliberate/reckless misconduct)
- United States v. Jacobsen, 466 U.S. 109 (cited for private-search principles)