D.Mont.: Google reporting CP under § 2258A is not a government actor

Google has an internal protocol to report child pornography in its system to NCMEC. The file in this case started with Pennsylvania and ended in Montana. When the file was reviewed there, Montana authorities issued a search warrant. They were required to report under § 2258A, but none of this made Google a government actor. United States v. Drivdahl, 2014 U.S. Dist. LEXIS 29233 (D. Mont. March 6, 2014):

Once again, the evidence used to support probable cause for the search warrant consisted of a number of CyberTips that Google prepared and sent to NCMEC from February to June of 2013, as well as Zadig’s supplement. Zadig’s affidavit sheds light on precisely how Google handles its CyberTip reporting. Zadig testified that Google has a strong business interest in ensuring that its products are free of materials depicting child sexual abuse, and that eradicating such materials is “critically important to protecting our users, our product, our brand, and our business interests.” (Doc. 25 at 1.) To serve this interest, Google has a structured and formalized approach to ferret out child pornography. Part of Google’s standard procedure involves a member of the Legal Removals Team opening “each reported image file to confirm that it appeared to meet the statutory definition of child pornography … prior to submitting a CyberTip report.” (Doc. 25 at 2.) Unlike in United States v. Keith, 2013 WL 5918524 (D. Mass. Nov. 5, 2013) where AOL’s internal process for discovering child pornography relied entirely on algorhythmic “hash value” information, the suspect material was opened by a Google employee prior to being turned over to the government. Thus, there was no expansion of the private search, which would have required a warrant.