D.Neb.: Google did not become a state actor by scanning email for child pornography and then reporting it to NCMEC

Google did not become a state actor by scanning email for child pornography and then reporting it to NCMEC. The IP address provided led to a search warrant. There was no Franks violation in not providing mobile IP addresses, too, because it would not change the outcome. United States v. Miller, 2015 U.S. Dist. LEXIS 136185 (D.Neb. Sept. 9, 2015), adopted 2015 U.S. Dist. LEXIS 136187 (D.Neb. Oct. 6, 2015):

The Fourth Amendment only applies to state action. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). The Fourth Amendment’s protection against unreasonable searches and seizures “is wholly inapplicable to a search or seizure … effected by a private individual not acting as an agent of the Government.” Id. Defendant argues that Google, in reporting to the NCMEC, was effectively acting as a government deputy in an anti-child pornography program and, therefore, qualifies as a government agent for purposes of the Fourth Amendment. The undersigned disagrees. In reporting the images found, Google was simply fulfilling its obligation under 18 U.S.C. § 2258A to report actual knowledge of any facts or circumstances involving child pornography. In another case discussing internet service providers’ duties under § 2258A, the Eighth Circuit Court of Appeals concluded that “[a] reporting requirement, standing alone, does not transform an Internet service provider into a government agent whenever it chooses to scan files sent on its network for child pornography.” United States v. Stevenson, 727 F.3d 826, 830 (8th Cir. 2013). Google is a private, for profit entity. It complied with its statutory duty to report violations of child pornography laws. Google did not become a state actor by providing the reports required by law. Therefore, Defendant’s request for suppression of evidence should be denied.