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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)