Users of Sony’s PlayStation3 communicate with each other through Sony’s PlayStation Network, like email. Sony in its terms of service prohibits transfer of illegal things, and it reserves the right to monitor. Also, 18 U.S.C. § 2258 makes Sony a mandatory reporter of child pornography it discovers. Suspicious transmissions led Sony to monitor defendant’s account until it finally found messages relating to child pornography. Sony reported all the location information on defendant’s account to NCMEC. This was a private search. [See comment at end about misleading headlines about this case on the Internet.] United States v. Stratton, 2017 U.S. Dist. LEXIS 6372 (D.Kan. Jan. 17, 2017):
The Fourth Amendment is wholly inapplicable “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). To determine whether a private entity acted as a government agent when it conducted a search, the Tenth Circuit uses a two-part test: “1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.” United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000).
Our Circuit has not addressed whether electronic service providers, like Sony, act as government agents when they monitor their users’ activities on their servers. But, the Circuits that have addressed the question uniformly reject the government agent theorem. See United States v. Cameron, 699 F.3d 621, 638 (1st Cir. 2012) (“[I]f Yahoo! chose to implement a policy of searching for child pornography, it presumably did so for its own interests.”); United States v. Stevenson, 727 F.3d 826, 831 (8th Cir. 2013) (“AOL’s decision on its own initiative to ferret out child pornography does not convert the company into an agent or instrument of the government for Fourth Amendment purposes. … AOL’s voluntary efforts to achieve a goal that it shares with law enforcement do not, by themselves, transform the company into a government agent.”); United States v. Richardson, 607 F.3d 357, 366 (4th Cir. 2010) (holding that AOL’s scanning of email communications for child pornography did not trigger the Fourth Amendment’s warrant requirement because no law enforcement officer or agency asked the provider to search or scan the defendant’s emails).
But defendant argues that Sony acted as a government agent under the standard the Tenth Circuit articulated in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016). In Ackerman, the Circuit considered whether NCMEC is a government entity, or alternatively, acts as a government agent when it creates and maintains CyberTipline reports for Congress. It held that NCMEC is a governmental entity, or at the very least, that NCMEC acts as a government agent when it maintains the CyberTipline, reviews emails and attachments sent to the CyberTipline, and reports illegal content to law enforcement. Id. at 1296-1304. According to Ackerman, “an agency relationship is usually said to ‘result[ ] from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.'” Id. at 1301 (quoting Restatement (Second) of Agency § 1). And Acerkman found that NCMEC’s comprehensive statutory structure suggested that Congress both “knew of and acquiesced” to NCMEC’s actions. Id. at 1301.
But, Ackerman discusses the comprehensive statutory structure governing NCMEC. See id. at 1301-02 (Congress statutorily required AOL to forward emails containing child pornography to NCMEC, statutorily required NCMEC to maintain the CyberTipline to receive these emails, statutorily permitted NCMEC to review these emails and attachments, and statutorily required NCMEC to report illegal behavior to law enforcement authorities); see also 42 U.S.C. § 5773(b) (the primary statute mandating NCMEC’s collaboration with federal law enforcement). The only similar statute governing Sony is 18 U.S.C. § 2258. And § 2258 only requires Sony to file a report if it learns of facts that suggest an incident of child abuse. Unlike the statute governing NCMEC, § 2258 does not require Sony to act affirmatively to monitor its users’ accounts, review its users’ downloads, or maintain any sort of reporting system for abuse of Sony’s PSN. Sony monitors its users’ accounts to protect its own interests in a safe online gaming community. Nothing in § 2258, the parties’ briefs, or in the evidence presented at the June 20, 2016 and November 10, 2016 hearings suggests that Sony consented to act on behalf of the government or subject to its control.
Defendant contends that a meeting occurred on June 27, 2012, between someone at Sony and the FBI “to discuss [the] case and hand over data,” and that this is evidence that Sony was working with the FBI “even before information was sent to NCMEC.” Doc. 58 at 22. And, according to defendant, Sony worked with law enforcement’s consent when Sony retrieved images downloaded onto Susan_14’s account. Defendant contends that Sony did this to comply with § 2258, and thus Sony acted in furtherance of the government’s purpose.
But, before the meeting on June 27, 2012, Sony already had received a customer grief report about Susan_14 on June 6, 2012. So, even before law enforcement allegedly became involved, Sony was alerted to a complaint about Susan_14. And, the court finds Sony acted to protect its own interests in a safe online gaming community when it reviewed the messages and attachments referenced in the June 6, 2012 grief report.
You can ignore all those breathless press reports like PlayStation LifeStyle’s PSN Data Isn’t Protected by Fourth Amendment and about 20 others. It is protected by the Fourth Amendment, but nothing, NOTHING, is protected from a purely private search, and users of the PS3, if they bothered to read their terms of service, know that’s a risk. If the government told Sony to turn it over and Sony did, that would clearly be governed by the Fourth Amendment and a search warrant is required. A PS3 is a computer connected to the Internet, just like the one you are reading this on. Without an exception to the warrant requirement, one is always required to get into a computer. But, this is a private search initiated with cause under Sony’s TOS without government instigation or participation. And, when you send messages like “u want to see naked kids tonight” and “Friend Request. Do you have child porn.” (slip op. at 5), any reasonable computer user should assume by now that the service provider has robots scanning the messages for child porn. It is no longer 1990.
This case is hardly new because SCOTUS recognized the private search doctrine 95½ years ago in Burdeau v. McDowell, 256 U.S. 465 (1921). See Treatise Chapter 18.
