CA10: NCMEC is govt agent not a subject to private search doctrine; email a “paper” or “effect” for 4A

NCMEC is a government actor because of how the government treats and funds it, and the private search doctrine does not apply to it. AOL here captured emails with child pornography and forwarded them to NCMEC which further searched them, and an email is a “paper” and “effect” under the Fourth Amendment. United States v. Ackerman, 2016 U.S. App. LEXIS 14411 (10th Cir. Aug. 5, 2016):

Focusing in particular on NCMEC’s CyberTipline functions, the functions at issue in this case, illustrates and confirms the special law enforcement duties and powers it enjoys. First, NCMEC and NCMEC alone is statutorily obliged to maintain an electronic tipline for ISPs to use to report possible Internet child sexual exploitation violations to the government. Under the statutory scheme, NCMEC is obliged to forward every single report it receives to federal law enforcement agencies and it may make its reports available to state and local law enforcement as well. See id. § 2258A(c).

Second, ISPs must report any known child pornography violations to NCMEC. Not to any other governmental agency, but again to NCMEC and NCMEC alone. ISPs who fail to comply with this obligation face substantial (and apparently criminal) penalties payable to the federal government. Id. § 2258A(a)(1), (e); see also Child Exploitation & Obscenity Section, Frequently Asked Questions (FAQs), U.S. Dep’t Just., (last visited July 7, 2016) (“If the ISP knowingly and willfully fails to report the apparent violation, it is subject to criminal penalties.”).

Third, when NCMEC confirms it has received a report the ISP must treat that confirmation as a request to preserve evidence issued by the government itself. Compare 18 U.S.C. § 2258A(h)(1) (“[T]he notification to an [ISP] . . . by the CyberTipline of receipt of a report … shall be treated as a request to preserve, as if such request was made pursuant to section 2703(f).”), with id. § 2703(f)(1) (“A[n ISP] …, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession ….”). Failure to comply again opens an ISP to potential civil or criminal sanctions. See id. § 2258B.

Fourth, in aid of its tipline functions NCMEC is statutorily authorized to receive contraband (child pornography) knowingly and to review its contents intentionally. Id. § 2258A(a), (b)(4); NCMEC Amicus Br. at 20-21. Actions that would normally subject private persons to criminal prosecution. See 18 U.S.C. § 2252A(a)(2) (knowing receipt or distribution); id. § 2252A(a)(5)(B) (knowing possession or access with intent to view). But actions that Congress allows NCMEC to take precisely because of the unique value it provides in the prosecution of child exploitation crimes. See R. vol. 3 at 198-99. Of course, Congress also provides that ISPs who forward and preserve images of child pornography in accord with the law may not be prosecuted. See 18 U.S.C. § 2258B(a). But this insulates ISPs only when they do what any private citizen who discovers apparent child pornography might without inviting a real risk of criminal prosecution: pass evidence along to law enforcement and comply with its preservation instructions. All quite unlike NCMEC, which (again alone) enjoys the right to receive child pornography knowingly and review it intentionally.

Recent Supreme Court decisions fortify our conviction that NCMEC qualifies as a governmental entity. In a pair of cases the Court held that Amtrak — a publicly owned corporation — is a governmental entity. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 399 (1995); Dep’t of Transp. v. Ass’n of Am. R.Rs. (DOT), 135 S. Ct. 1225, 1233 (2015). The Court began by recalling that the government cannot “evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form.” Lebron, 513 U.S. at 397. Then the Court proceeded to examine the level of governmental control over Amtrak, the broad statutory mandates to which it was subject, its dependence on federal funding, the purpose behind its creation, and the benefits it conferred on the government. See id. at 397-400; see also DOT, 135 S. Ct. at 1231-33. In the end, the Court held that the “combination” of these considerations conspired to suggest that Amtrak was indeed a governmental entity. Id. at 1232-33.

Looking to similar considerations here leads us to a similar conclusion. Much as Amtrak was created by statute to assume functions previously carried out by private railroads, Congress passed statutes to fund and mandate various of NCMEC’s functions soon after private parties incorporated it. Today, NCMEC is statutorily required to perform over a dozen separate functions, a fact that evinces the sort of “day-to-day” statutory control over its operations that the Court found tellingly present in the Amtrak cases. Law enforcement agents participate at varying levels in its daily operations, and government officials enjoy a sizeable presence on its board. As much as 75 percent of its budget (excluding in-kind donations) comes from the federal government. NCMEC Amicus Br. at 9. Neither is there any question about the public benefit NCMEC confers, for by all accounts its important work is essential to the identification and prevention of child sexual exploitation crimes. Congress and NCMEC alike have expressly said as much. See, e.g., 42 U.S.C. § 5771; National Center for Missing & Exploited Children: Our Work, NCMEC, (last visited July 7, 2016). Given all this and as a matter of analogistic reasoning, it’s difficult to see how a quasi-public corporation like Amtrak (a mere utility, really) might qualify as a governmental entity while NCMEC, an entity afforded so many unique law enforcement powers, might not.

. . .


Having determined that NCMEC is a governmental entity or agent and that it searched Mr. Ackerman’s email without a warrant, at this point you might wonder whether the government could argue that NCMEC’s search still qualifies as a “reasonable” one because of, say, exigent circumstances or the “special needs” doctrine. Or whether any Fourth Amendment violation in opening the email or the three other attachments was too attenuated from the discovery of incriminating evidence in the matching hash value attachment to justify exclusion as the appropriate remedy. Or whether suppression might also be an inappropriate remedy because NCMEC acted in “good faith.” But the government argues none of these points in this appeal, seeming instead to accept that if NCMEC was a governmental entity or agent and if its opening of the email was an unwarranted search, then its subsequent discovery of four attached images of child pornography was “fruit of a poisonous tree” and should be suppressed. Indeed, the closest the government comes to briefing any of these questions is to tell us it incorporates by reference the good faith arguments it presented to the district court. Even though this court has repeatedly instructed (both in rule and case law) that this sort of mechanical “[i]ncorporating by reference portions of lower court or agency briefs or pleadings” is insufficient to preserve a point for appellate review. 10th Cir. R. 28.4; see also Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998).

So with that, our encounter with this case comes to an end — at least for now. Surely hard questions remain to be resolved on remand, not least the question whether the third-party doctrine might preclude Mr. Ackerman’s claim to the Fourth Amendment’s application, a question the government has preserved and the district court and we have reserved. But about one thing we can be very certain. There can be no doubt that NCMEC does important work and that its work can continue without interruption. After all, it could be that the third-party doctrine will preclude motions to suppress like Mr. Ackerman’s. Or that changes in how reports are submitted or reviewed might allow NCMEC to access attachments with matching hash values directly, without reviewing email correspondence or other attachments with possibly private, noncontraband content — and in this way perhaps bring the government closer to a successful invocation of the private search doctrine. Or it may be possible that the government could cite exigent circumstances or attenuation doctrine or special needs doctrine or the good faith exception to excuse warrantless searches or avoid suppression in at least some cases. But even if not a single one of these potential scenarios plays out — and we do not mean to prejudge any of them — we are confident that NCMEC’s law enforcement partners will struggle not at all to obtain warrants to open emails when the facts in hand suggest, as they surely did here, that a crime against a child has taken place.

The district court’s denial of the motion to suppress is reversed. The case is remanded for further proceedings consistent with this opinion.

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