M.D.Fla.: Facebook capturing CP was private search; its ToS show no REP

Facebook’s passing on suspected child pornography on its platform is a private search. Moreover, Facebook’s terms of service show a lack of a reasonable expectation of privacy for child porn. United States v. Montijo, 2022 U.S. Dist. LEXIS 4577 (M.D.Fla. Jan. 10, 2022):

A seemingly straightforward issue—does the private search doctrine apply here—presents tough constitutional questions that circuit and district courts have answered differently. The split seems to stem from courts struggling to sync an established Fourth Amendment doctrine with today’s technology used to combat the online spread of child pornography. Courts have generally applied the same seminal Supreme Court cases from the 1980s on the private search doctrine to situations in which electronic service providers (like Facebook) report defendants for sending, receiving, or distributing apparent child pornography. The Ninth and Tenth Circuits have found the private search doctrine inapplicable and suppressed the evidence. The Fifth, and Sixth Circuits have done the opposite, and for different reasons. The Eleventh Circuit has yet to consider the issue. Against this backdrop, the Court turns to the Motion.

. . .

This case is not as if a private citizen stumbled across a child pornography image on a laptop or cell phone and gave the device to law enforcement who then searched the device’s entire contents. Rather, Facebook’s contractors, who are trained on what constitutes child pornography under federal law, verified the illicit content of a duplicate file of the Video. And Officer Baricelli viewed only that single Video that Facebook provided. In doing so, he reviewed the same information discovered during the private search. Under these facts, Officer Baricelli did not need to avert his eyes from the Video when he received the Report. See Coolidge, 403 U.S. at 489. The Court thus finds the private search doctrine applies to justify the warrantless search of the Video.

In reaching this decision, the Court is mindful of the legal split on this issue. It also recognizes that the Ninth Circuit in Wilson recently decided a factually similar case and reached the opposite conclusion. But the Eleventh Circuit has not yet weighed in whether the Fourth Amendment prohibits an officer from opening and reviewing the files after a private party has determined that the files’ hash values matched known child pornography images in its database. So the Court has anchored its analysis to the original precedents announced in Walter and Jacobsen and applied those principles to deny Defendant’s motion.

B. Reasonable expectation of privacy

Under the Terms of Service and Community Standards, Facebook warned Defendant he risked being reported to law enforcement or NCMEC if Facebook discovered that he sent, received, or distributed apparent child pornography. To the extent Defendant argues that Facebook does not explicitly state it will monitor a user’s Messenger chats or images shared in it, that outcome is reasonably implied with the caution that Facebook will use technology to detect the misuse of its services. (Gov. Ex. 2 at 2). And how can Facebook “detect” if it does not “monitor” in some way? Even if Defendant believed that his communications in Messenger were private, society is not prepared to recognize that belief as reasonable given Facebook’s Terms of Service and Community Standards. In the end, Defendant lost any expectation of privacy in the Video once he hit send. See United States v. Odoni, 782 F.3d 1226, 1238 (11th Cir. 2015) (“An individual does not have a reasonable expectation of privacy in an object to the extent the object has been searched by a private party.” (citation omitted)). Without a reasonable expectation of privacy, Officer Baricelli did not violate his Fourth Amendment rights when he watched the Video, and any privacy was waived by Facebook’s prior search.

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