United States v. Ackerman

• Decision Date: 05 August 2016
• Docket Number: No. 14-3265,14-3265
• Citation: 831 F.3d 1292
• Parties: United States of America, Plaintiff-Appellee, v. Walter E. Ackerman, Defendant-Appellant. National Center for Missing and Exploited Children; Dropbox, Inc.; Facebook, Inc.; Google, Inc.; Microsoft Corporation; Pinterest, Inc.; Snapchat, Inc. ; Twitter, Inc., Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

831 F.3d 1292

United States of America, Plaintiff-Appellee,

v.Walter E. Ackerman, Defendant-Appellant.

National Center for Missing and Exploited Children; Dropbox, Inc.; Facebook, Inc.; Google, Inc.; Microsoft Corporation; Pinterest, Inc.; Snapchat, Inc. ; Twitter, Inc., Amici Curiae.

No. 14-3265

United States Court of Appeals, Tenth Circuit.

August 5, 2016

Rehearing Denied October 4, 2016.^*

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, with him on the briefs), Office of the Kansas Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.

Jason W. Hart, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney, Wichita, Kansas, for Plaintiff-Appellee.

Christopher J. Schmidt, Bryan Cave LLP, St. Louis, Missouri (Lee Marshall, Bryan Cave LLP, San Francisco, California, and Logan Rutherford, Bryan Cave LLP, Kansas City, Missouri, with him on the brief), for amicus curiae National Center for Missing and Exploited Children, in support of Plaintiff-Appellee.

Eric D. Miller, Ryan T. Mrazik, Nicola Menaldo, Erin K. Earl, Perkins Coie LLP, Seattle, Washington, for amici curiae Dropbox, Inc., Facebook, Inc., Google, Inc., Microsoft Corporation, Pinterest, Inc., Snapchat, Inc., and Twitter, Inc., in support of Plaintiff-Appellee.

Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.

GORSUCH

, Circuit Judge, delivered the opinion of the Court, in which PHILLIPS, J., joined. HARTZ, J., joined Parts I, II, III(A), and IV.

Walter Ackerman's email never made it to its intended recipient. It didn't because AOL, Mr. Ackerman's internet service provider (ISP), has an automated filter designed to thwart the transmission of child pornography. After that filter identified one of four images attached to Mr. Ackerman's email as child pornography, AOL instantly stopped delivery and the company soon shuttered Mr. Ackerman's account.

How does AOL's screening system work? It relies on hash value matching. A hash value is (usually) a short string of characters generated from a much larger string of data (say, an electronic image) using an algorithm—and calculated in a way that makes it highly unlikely another set of data will produce the same value. Some consider a hash value as a sort of digital fingerprint. See Richard P. Salgado, Fourth Amendment Search and the Power of the Hash , 119 Harv. L. Rev. F. 38, 38-40 (2005)

. AOL's automated filter works by identifying the hash values of images attached to emails sent through its mail servers. Those values are then compared to the hash values of images that AOL employees have viewed previously and deemed child pornography. Any email containing an image with a matching hash value is automatically weeded out.

As soon as AOL identified a hash value match in this case, the company did just what federal law requires: it forwarded a report to the National Center for Missing and Exploited Children (NCMEC) through an online tool called the CyberTipline. AOL's report included Mr. Ackerman's email along with all four attached images. A NCMEC analyst opened the email, viewed each of the attached images, and confirmed that all four (not just the one AOL's automated filter identified) appeared to be child pornography. After the analyst determined as well that Mr. Ackerman was the likely owner of the account, NCMEC alerted law enforcement agents in the area where he lived. And not long after that, a federal grand jury indicted Mr. Ackerman on charges of possession and distribution of child pornography. At the end of it all, Mr. Ackerman entered a conditional guilty plea but reserved his right to appeal the denial of his motion to suppress the fruits of NCMEC's investigation.

We can appreciate why, for his motion raises (at least) two difficult constitutional questions. Mr. Ackerman alleges that NCMEC's actions amounted to an unreasonable search of his email and its attachments because no one sought a warrant and no one invoked any recognized lawful basis for failing to seek one. But the Fourth Amendment only protects against unreasonable searches undertaken by the government or its agents—not private parties. So Mr. Ackerman's motion raises the question: does NCMEC qualify as a governmental entity or agent? Even if it does, a second hard question remains. The Supreme Court's “private search” doctrine suggests the government doesn't conduct a Fourth Amendment “search” when it merely repeats an investigation already conducted by a private party like AOL. Which raises this question: did NCMEC simply repeat or did it exceed the scope of AOL's investigation? For its part, the district court denied Mr. Ackerman's motion to suppress both because NCMEC is not a governmental actor and, alternatively and in any event, because NCMEC's search didn't exceed the scope of AOL's private search.

We find we must disagree.

I

Start with the question whether NCMEC qualifies as a governmental entity. The problem of drawing a line between public and private entities is an old and difficult one. Perhaps the Supreme Court's first great tangle with the task came in Trustees of Dartmouth College v. Woodward , 17 U.S. (4 Wheat.) 518, 668–69, 4 L.Ed. 629 (1819)

. There the Court suggested that the calling card of a governmental entity is whether it is “invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority.” Id. at 634 (opinion of Marshall, C.J.). That an entity might be incorporated, as NCMEC is, doesn't prevent it from also qualifying as a governmental entity: the dispositive question isn't one of form but function, turning on what the entity does, not how it is organized. So, for example, a municipality may undoubtedly qualify both as a corporation and as a governmental entity. See Philips v. Bury (1694) 90 Eng. Rep. 1294, 1299 (“There are in law two sorts of corporations aggregate of many; such as are for publick government, and such as are for private charity.”); 1 Joseph Stancliffe Davis, Essays in the Earlier History of American Corporations 72-74 (1917).

When it comes to what qualifies as a public, political, or sovereign function, we know too that the “police function” is among the paradigmatic examples. See Foley v. Connelie , 435 U.S. 291, 297, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978)

(describing the “police function” as “one of the basic functions of government”); Flagg Bros., Inc. v. Brooks , 436 U.S. 149, 163, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (noting that policing is among the “state and municipal functions” that “have been administered with a greater degree of exclusivity by States and municipalities”). Even before the rise of professional police departments, a private person dragooned into a “posse comitatus” bore “the same authority as the sheriff” and “was protected [by law] to the same extent.” Filarsky v. Delia , ––– U.S. ––––, 132 S.Ct. 1657, 1664, 182 L.Ed.2d 662 (2012) ; see also 1 William Blackstone, Commentaries *332. To be sure, some cases have suggested that the mere investigation of crime or temporary detention of suspected criminals by private security guards is not a uniquely public function. See, e.g. , Gallagher v. “Neil Young Freedom Concert ,” 49 F.3d 1442, 1457 (10th Cir. 1995) ; Wade v. Byles , 83 F.3d 902, 905–06 (7th Cir. 1996) ; United States v. Garlock , 19 F.3d 441, 443–44 (8th Cir. 1994). But that's because the guards' lawful authority to act in those cases was no broader than that enjoyed by any private citizen—including the right to carry a weapon, to use deadly force in self-defense, and to conduct a citizen's arrest. See Romanski v. Detroit Entm't, L.L.C. , 428 F.3d 629, 637–38 (6th Cir. 2005)

. Meanwhile, when an actor is endowed with law enforcement powers beyond those enjoyed by private citizens, courts have traditionally found the exercise of the public police power engaged. Id. at 637.¹

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. NCMEC's two primary authorizing statutes—18 U.S.C. § 2258A

and 42 U.S.C. § 5773(b) —mandate its collaboration with federal (as well as state and local) law enforcement in over a dozen different ways, many of which involve duties and powers conferred on and enjoyed by NCMEC but no other private person. For example, NCMEC is statutorily obliged to operate the official national clearinghouse for information about missing and exploited children, to help law enforcement locate and recover missing and exploited children, to “provide forensic technical assistance ... to law enforcement” to help identify victims of child exploitation, to track and identify patterns of attempted child abductions for law enforcement purposes, to “provide training ... to law enforcement agencies in identifying and locating non-compliant sex offenders,” and of course to operate the CyberTipline as a means of combating Internet child sexual exploitation. 42 U.S.C. § 5773(b). Responsibilities and rights Congress has extended to NCMEC alone “under Federal law” and done so specifically “to assist or support law enforcement agencies in administration of criminal justice functions.” Id. § 16961(a)(1). This special relationship runs both ways, too, for NCMEC is also empowered to call on various federal agencies for unique forms of assistance in aid of its statutory functions. See 18 U.S.C. § 3056(f) (authorizing the U.S. Secret Service to provide, “at the request of” NCMEC, “forensic and investigative assistance in support of any investigation involving missing or exploited children”).

Focusing in particular on NCMEC's CyberTipline functions, the functions at issue in this case, illustrates and confirms the special law enforcement duties and powers it enjoys. First, NCMEC and NCMEC alone is statutorily obliged to maintain an electronic tipline...