Wednesday, January 25, 2017

Tenth Addresses When An Entity is a Government Agent for 4th Amendment Purposes; Reverses Denial of Motion to Suppress

U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) - The 10th reverses a suppression denial in a case involving private/public search issues. AOL intercepted Mr. Ackerman's e-mail because an AOL filter identified one of the 4 images attached to the e-mail as child porn. AOL did as federal law required and forwarded a report to the National Center for Missing and Exploited Children (NCMEC). The report included the e-mail with all 4 images. A NCMEC analyst opened the email and decided all 4 images were child porn. NCMEC determined Mr. Ackerman was the likely account owner and informed law enforcement agents in the area where Mr. Ackerman lived. A child porn indictment soon followed.

The 10th rules the NCMEC qualifies as a government entity subject to the 4th Amendment. It's the entity's function, not how it's organized, that determines whether it is a government agency. When an actor is endowed with law enforcement powers beyond those enjoyed by private citizens, the actor is exercising police power and so is governed by the 4th. Here NCMEC's authorizing statutes mandate collaboration with law enforcement in over a dozen different ways, many of which involve duties and powers beyond what private folks have. For example, NCMEC must operate an official national clearinghouse of information about missing and exploited kids. With respect to child porn, NCMEC must maintain an electronic tipline for ISPs to use to report possible internet chid sexual exploitation, which tips NCMEC must in turn report to law enforcement. ISPs must report any known child porn to NCMEC. When NCMEC confirms receipt of the report the ISP must preserve the evidence. NCMEC is statutorily authorized to knowingly receive child porn, unlike the rest of us. Law enforcement agents participate in NCMEC's daily operations and government officials enjoy a sizeable [almost 25%] presence on its board. The 10th relies for its conclusion on recent S. Ct. cases holding Amtrak is a government entity. The 10th holds Mr. Ackerman preserved his government-entity contention on appeal by asserting below the NCMEC was a government agent. On the other hand, it holds the government forfeited substantive arguments that only amicus NCMEC made on appeal. But the 10th rejects NCMEC's arguments anyway. It doesn't matter that some private money supports NCMEC. The bulk of funding comes from the federal government. NCMEC has a duty to perform the functions it does, the 10th says. It's not discretionar,y as NCMEC argued, because the relevant statute says "shall."

In any event, the 10th says, even if NCMEC were a private entity, it acted as a government agent in this case. This is so because NCMEC acted with the government's consent with the intent to further the government's purpose. The standard of review for the agency question is de novo. So the 10th owes no deference to the district court's contrary agency finding.

It was a search to open and review the email and its attachments, just as it is a search to open snail mail. The 10th however, leaves open the possibility that the third-party doctrine might apply, that is, because he shared the email with AOL Mr. Ackerman lacked a reasonable expectation of privacy in his email. The District court did not address that issue, which it can on remand. The 10th avoids addressing the issue now because factual issues remain to be determined, such as the extent to which AOL accessed emails and the extent to which users were aware of and acquiesced in such access. The 10th rejects the government's claim that NCMEC just did what the private AOL employees already did and so there was no intrusion by the government beyond what had already been done by non-government folks. But NCMEC went beyond what AOL did, which was only to make a hash value match. NCMEC actually opened the email and the attachments. The 10th distinguishes the case's circumstances from the agents' testing of the white powder in U.S. v. Jacobsen, 466 U.S. 109 (1984), where FedEx employees had already opened the package and discovered the white powder. The Jacobsen test could only disclose whether the powder was contraband, whereas the email opening could have disclosed all sorts of non-contraband private information. In part of the opinion with which only two of the three judges agree, the 10th even questions the current validity of Jacobsen. Since Jacobsen, the Court in U.S. v. Jones, 132 S. Ct. 945 (2012), (the case involving the placing of a GPS device on a car), indicated a 4th Amendment search could involve an invasion of a reasonable expectation of privacy or a trespass. In Jacobsen, the agents physically intruded on the white powder. It's possible, the 10th suggests, that the Court today would find the Jacobsen drug testing---a destruction of a chattel--- was a search. Here there was a trespass of chattels in the opening and viewing of the email.