PA: 18 U.S.C. § 2558A doesn’t mandate social media searches, only reporting what they discover; still a private search

The searches of social media by Facebook and Google then reported to NCMEC were private searches. The fact there’s a duty to report that which they find doesn’t mean any searches were mandated by government. Commonwealth v. Thomas, 2026 PA Super 209 (Sep. 21, 2026):

Neither Facebook nor Google were required or requested by the government to search Appellant’s account to locate CSAM. Section 2558A only mandates that they report any CSAM they may find. The mechanisms used to locate CSAM and the extent to which they conduct any search is left to the discretion of both Google and Facebook. They exercise their rights to regulate the content on their platforms and have put systems in place that find and flag content that includes CSAM. At no point did the government force them into the creation of this system. Nor does the record support any finding that Google and Facebook conducted their searches of Appellant’s files at the government’s urging or by any means of manipulation or coercion.

ESPs such as Google and Facebook are required under § 2558A to report any known CSAM to NCMEC, who in turn is required to send the report(s) to the local law enforcement agency (which it does through ICAC) where the CSAM is either downloaded or uploaded. Critically, this same law specifically disclaims any obligation by ESPs to monitor a) any user, subscriber, or customer of that provider, b) the content of any communication, or c) to affirmatively search, screen, or scan for CSAM. 18 Pa.C.S.A. § 2558(A)(f). Thus, the statute effectively places any decision to search within the discretion of the ESPs. See, e.g., United States v. Meals, 21 F.4th 903 (5th Cir. 2021) (holding that nothing in the language under 2558A compelled or coerced ESPs to search actively for evidence of CSAM). Accordingly, neither Facebook nor Google can be deemed government agents, even if the result of their searches benefits the government. Id. at 908; United States v. Miller, 982 F.3d 412, 421-26 (6th Cir. 2020) (same); United States v. Ringland, 966 F.3d 731 (8th Cir. 2020) (same); United States v. Rosenow, 50 F.4th 715, 729-31 (9th Cir. 2022) (“federal law did not transform Yahoo’s and Facebook’s private searches into governmental action.”); U.S. v. Cameron, 699 F.3d 621, 637-38 (1st Cir. 2012) (“We will not find that a private party has acted as an agent of the government ‘simply because the government has a stake in the outcome of the search.'”). Therefore, we too, like the trial court, conclude that neither Google nor Facebook were acting as government agents such that their searches ran afoul of the protections under the Fourth Amendment. Instead, the record here only supports the conclusion that they were at all times acting as “private actors.”

Separately, Appellant also contends that the items received by NCMEC from Facebook and Google must be suppressed since NCMEC is a government actor. Appellant does not develop this argument in his brief beyond referring to the same statutory basis upon which he argued that Google and Facebook were government actors – § 2558A.

NCMEC “is a private, non-profit 501(c)(3) organization created in 1984 by child advocates to serve as a national clearinghouse and resource center for families, victims, private organizations, law enforcement, and the public on missing and sexually exploited child issues.” See N.T. Suppression Hearing, 10/17/24, Exhibits 3-5 (CyberTipline Reports). Although NCMEC began as a non-profit organization, Congress has since empowered NCMEC to exercise significant law enforcement responsibility. The Administrator of the Office of Juvenile Justice and Delinquency Prevention is statutorily obligated to make an annual grant to NCMEC. 34 U.S.C.A. § 11293(b)(1). Monies from the grant shall be used to “work with families, law enforcement agencies, [ESPs], electronic payment service provides, technology companies, nongovernmental organizations, and others on methods to reduce the existence and distribution of online images and videos of sexually exploited children by operating a CyberTipline[.]” 34 U.S.C.A. § 11293(b)(1)(K)(i). The statute also provides that the grant money shall be used to “make reports received through the CyberTipline available to the appropriate law enforcement agency for its review and potential investigation[.]” 34 U.S.C.A. § 11293(b)(1)(K)(i)(II).