Search Deficiencies Mean Suppression of Child Porn

     (CN) — Images of child pornography obtained by the National Center for Missing and Exploited Children through a warrantless search of a man’s email attachments must be suppressed, the 10th Circuit ruled Friday, reversing a U.S. District Court decision.
     U.S. Circuit Justice Neil Gorsuch outlined the history of the case in his 36-page opinion.
     Defendant Walter Ackerman’s email message, which included four attachments depicting child pornography, was flagged by his Internet service provider, America Online, because its filter algorithm identified one of the images as potentially illegal. AOL forwarded the email to the National Center for Missing and Exploited Children, which discovered that all four attachments depicted child pornography. It turned the email over to local law enforcement, and soon after a federal grand jury indicted Ackerman for possession and distribution of child pornography.
     Ackerman appealed, arguing that the evidence obtained through the examination of his email should be suppressed because the NCMEC did not have a warrant.
     His appeal turned on two questions: 1) whether NCMEC is a governmental entity and therefore requires a warrant or consent to conduct an email search; and 2) whether NCMEC was simply repeating an earlier search performed by a private entity not subject to the same search restrictions.
     The U.S. District Court in Kansas denied Ackerman’s motion to suppress evidence, finding that NCMEC was not a government entity, and that even if it were, it was only repeating AOL’s search.
     But Gorsuch, writing for a unanimous three-judge panel, rejected both arguments.
     “NCMEC’s law enforcement powers extend well beyond those enjoyed by private citizens — and in this way it seems to mark it as a fair candidate for a governmental entity,” Gorsuch wrote.
     He outlined the various responsibilities and privileges assigned to NCMEC by the federal government, including the fact that it is the only agency to which Internet service providers must provide evidence of child pornography, its right to receive and review child pornography without facing prosecution and its close working relationship with law enforcement. It also receives the majority of its funding from the federal government, with directives from the government about how to spend it.
     Gorsuch added that even if NCMEC was not a government entity, it was acting on behalf of the government when it reviewed the email in question and thus was subject to governmental restrictions on searching private property.
     “Here we know Congress statutorily required AOL to forward Mr. Ackerman’s email to NCMEC; Congress statutorily required NCMEC to maintain the CyberTipline to receive emails like Mr. Ackerman’s; Congress statutorily permitted NCMEC to review Mr. Ackerman’s email and attachments; and Congress statutorily required NCMEC to pass along a report about Mr. Ackerman’s activities to law enforcement authorities,” Gorsuch continued.
     “This comprehensive statutory structure seems more than enough to suggest both congressional knowledge of and acquiescence in the possibility that NCMEC would do exactly as it did here,” he wrote.
     In addition, Gorsuch found that NCMEC did not repeat AOL’s initial search but exceeded it. Whereas AOL’s algorithm flagged just one file as potentially problematic, its staff never viewed that file or the others attached to the email. But NCMEC opened both the email message and all four of its attachments.
     Gorsuch’s opinion concludes with an admonishment to the NCMEC to adhere to constitutional search procedures.
     “[W]e are confident that NCMEC’s law enforcement partners will struggle not at all to obtain warrants to open emails when the facts in hand suggest, as they surely did here, that a crime against a child has taken place,” he wrote.
     The United States Attorney’s Office in Wichita, Kansas, declined to comment, and Ackerman’s attorney, Daniel Hansmeier with the Office of the Kansas Federal Public Defender, did not respond to an email seeking comment.

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