N.D.Cal.: Subpoena to Microsoft to attempt to show it was a state actor in NCMEC report is quashed as burdensome

Defendant’s Rule 17 subpoena to Microsoft to attempt to show that the cybertip to NCMEC was not a private search is quashed as unreasonable and burdensome. United States v. Burley, 2023 U.S. Dist. LEXIS 96642 (N.D. Cal. June 2, 2023)*:

Microsoft moves to quash Request 5 in full and Request 10 in part as insufficiently specific, irrelevant, inadmissible, unduly burdensome, and cumulative. Because the information Defendant seeks is irrelevant and cumulative of the information Microsoft provides in its supplemental submission (and thus unduly burdensome), the Court quashes Defendant’s subpoena.

Defendant seeks documents concerning Microsoft’s procedures for reviewing child sex abuse imagery. As noted above, Defendant seeks this information to determine if the private search exception to the Fourth Amendment justified law enforcement’s search of four images of suspected child sex abuse, or if the search improperly exceeded the scope of Microsoft’s antecedent review. Id. at 3, 11. That issue turns on whether Microsoft conducted a manual review of each image. Microsoft, however, has produced sufficient documents concerning the scope of their employees’ review of the child sex abuse images at issue.