CA4: ISP’s duty to report child porn did not make its investigation a government search

AOL came upon child pornography and conducted its own investigation. As a “mandatory reporter,” AOL reported the child pornography to the government. AOL was not acting as an agent of the government, and defendant’s [creative] argument that the mandatory reporting requirements of Skinner applied here were rejected because the situations and interests were different. [AOL filed an amicus brief in support of the government.] United States v. Richardson, 607 F.3d 357 (4th Cir. 2010):

On June 10, 2004, AOL, pursuant to a mandatory reporting requirement set forth in 42 U.S.C. § 13032(b)(1),*1 reported to the Cyber Tip Line at the National Center for Missing and Exploited Children (“NCMEC”) that AOL had detected the transmission of child pornography images by a subscriber using an e-mail address called knifeisland@aol.com. NCMEC, also as mandated by the same federal law, passed along this information to the North Carolina State Bureau of Investigation (“SBI”), which, in turn, served AOL with an administrative subpoena for subscriber information related to the “knifeisland@aol.com” address. AOL determined that the “knifeisland@aol.com” account was registered to Richardson at 2541 Pine View Lane, Apartment H, Gastonia, North Carolina. The screen name “tr2066″ was also linked to this account. By August 2004, however, when SBI agents received and followed up on this information, Richardson no longer resided at the 2541 Pine View Lane address and no forwarding address was available.

*1 This particular provision is no longer in effect. The reporting requirements were amended and are now codified in 18 U.S.C. § 2258A.

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The question of whether a private entity such as AOL serves as a mere conduit for the Government in performing a search “necessarily turns on the degree of the Government’s participation in the private party’s activities.” Skinner, 489 U.S. at 614. “[T]here must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough.” Jarrett, 338 F.3d at 346. Additionally, we generally look for evidence bearing upon the question of “whether the private party’s purpose for conducting the search was to assist law enforcement efforts or to further h[is] own ends.” Ellyson, 326 F.3d at 527 (internal quotation marks omitted).

Thus, the key factors bearing upon the question of whether a search by a private person constitutes a Government search are: “(1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation.” Jarrett, 338 F.3d at 344.

There is no question that law enforcement agents did not actually participate in the search at issue here. …