Facebook (FB) decided on its own to surveil, collect, and review Stephen Meals‘ private messages with fifteen-year-old A.A., which indicated that Meals and A.A. were in an active sexual relationship. Facebook then deemed that the messages violated its terms of service, its community standards, and probably federal law and sent copies to the National Center for Missing and Exploited Children (NCMEC) via a “cyber tip”.
NCMEC reviewed the tip and then forwarded the message to the Corpus Christi police department. Warrants were obtained for Meals’ FB accounts, home, and electronic devices which revealed more incriminating evidence.
Meals was then indicted for production and possession of child pornography and made a motion to suppress the evidence arguing 1) FB was acting as a government agent when they passed the tip to police without first obtaining a warrant and 2) NCMEC was acting as a government agent when they passed the tip to police without first obtaining a warrant.
The district court denied the motion to suppress finding that neither FB nor NCMEC were government agents. They also dismissed based upon the private search doctrine (discussed in more detail below). The 5th affirmed the district court findings and denied the motion to suppress evidence in this matter.
A. Facebook was not an agent of police when passing tips about child pornography
Meals asserted that FB was an agent of police because there is a federal statute (18 USC 2258) that requires internet companies to send a cyber tip to NCMEC for all instances of child exploitation that is discovered. The 5th noted that this statute does not make FB an agent of the government; moreover, the statute neither compels nor encourages internet companies to actively search for such evidence. As stated above, FB acted on their own to discover the incriminating evidence in this case.
B. NCMEC was not an agent of police when passing tips about child pornography
NCMEC is a private non profit corporation, not a government entity.
C. The private search doctrine applies here
Under the private search doctrine, when a private actor finds evidence of criminal conduct after searching someone else’s person, house, papers, and effects without a warrant, the government can use the evidence, privacy expectations notwithstanding. In other words, if a non-government entity violates a person’s privacy, finds evidence of a crime, and turns over the evidence to the government, the evidence can be used to obtain warrants or to prosecute.
There are two exceptions to the private search doctrine. First, the doctrine does not apply if the “private actor” who conducted the search was actually an agent or instrument of the government when the search was conducted. Second, if the government, without a warrant, exceeds the scope of the private actor’s original search and thus discovers new evidence that it was not substantially certain to discover, the private search doctrine does not apply to the new evidence, and the new evidence may be suppressed.
In this case, NCMEC was not an agent of the government and they merely reviewed and passed along the identical evidence obtained from FB. Thus, neither exception applies in this case.
The U.S. Supreme Court has never given definitive guidance on what it means for government to exceed the scope of the private actor’s original search and discover new evidence. In a case named Runyan, that question was answered in the 5th.
The police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searchers unless the police are already substantially certain of what is inside that container based on the statements of the private searchers, their replication of the private search, and their expertise. The police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties.
Based on the above, if a wife brings you a flash drive and says it belongs to her husband and she found images of child pornography on it but did not examine the entire flash drive, would you be able to view the entire flash drive under the private search doctrine using the 5th circuit rules? Yes, assuming you are going to federal court in Mississippi.
Would the analysis be different if she brought you 30 flash drives and said she viewed child pornography on one of them? Presumably, you would now be in the “substantially certain” section above and it would be very difficult to use the private search doctrine in this example.
Different circuits have different rules about interpreting the private search doctrine. Always talk to your legal counsel or prosecutor about your particular situation first.