United States v. Drivdahl, 014 WL 896734 (D.Mont.), March 2014

 * Distinguishes United States v. Keith, 2013 WL 5918524 (D.Mass. Nov. 5, 2013)

Facts: Defendant was charged with receipt and distribution of CP. The basis for these charges originated with a CyberTipline Report made to NCMEC in February 2013 via an employee at Google. Google came across suspected images of CP, and pursuant to 18 U.S.C. § 2258Awas required to report those images to NCMEC. NCMEC then reported these findings to the appropriate law enforcement agency. The Detective handling the case filed an affidavit for search warrant in July 2013 based on the initial CyberTipline report and information obtained from Google via warrant (User Information). The application for search warrant also included information acquired from Google based on a subsequent investigation by a Google employee. Essentially that employee was conducting a routine review of its previously submitted CybterTipline reports and came across an email account ilovlitlgrls@gmail.com. The user of this account had multiple other accounts which contained images of CP as well as other activity supporting the trafficking of CP. This user also indicated that he had access to children because of his job at a school.  Based on these findings the Google employee launched an intensive investigation and reported his findings to NCMEC in a supplemental report.

 Attack on 4th Amendment Grounds: Defendant’sprimary argument is based on his understanding that after Google provided NCMEC several CyberTips, it became an “agent of the government, by analyzing data, disclosing other electronic communications beside child pornography and generally aiding law enforcement to determine the connections and interrelationships between and among various email addresses and accounts that were for the most part all connected to defendant’s residence.” Defendant claims that this was a joint endeavor subject to Fourth Amendment protection because “Google, the NCMEC and Detective Fischer teamed up to review and analyze any and all of the electronic data connected to defendant’s email address(es) for the express purpose of preparing the search warrant application.

 Law: Because the Fourth Amendment constrains government searches and seizures, it does not apply “to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). However, “[w]here a private party acts as an instrument or agent of the state in effecting a search or seizure, Fourth Amendment interests are implicated.” Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). The Ninth Circuit has established that when “determining whether a private party’s search implicates the Fourth Amendment, the relevant inquiry is (1) whether the government knew and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.” United States v. Cleveland, 38 F.3d 1092, 1093 (9th Cir.1994)

 Holding: Defendant contends that the supplemental report made by the Google employee is the product of “teaming up” between the Google employee and the Detective. Critically, however, the Google employee testified that at no time prior to the transmission of the report on July 24, 2013 did he speak to any government entity or officer regarding the subject matter of that report, and Defendant offers no evidence that calls this assertion into question. However, there is simply no evidence to support that any Government agent was aware or encouraged the Google employee’s investigation until it was completed and sent to NCMEC. This is dispositive of the first prong of the Cleveland test.

Additional Attack that Law Enforcement Expanded the Search by Google:   Defendant next argued that Google did not open the actual files, but reported them by file name to NCMEC. His argument is that once NCMEC and Law Enforcement actually opened the files, they expanded the search without a warrant.

Facts: Google has a strong business interest in ensuring that its products are free of materials depicting child sexual abuse, and that eradicating such materials is “critically important to protecting our users, our product, our brand, and our business interests.” To serve this interest, Google has a structured and formalized approach to ferret out child pornography. Part of Google’s standard procedure involves a member of the Legal Removals Team opening “each reported image file to confirm that it appeared to meet the statutory definition of child pornographyprior to submitting a CyberTip report.” (Doc. 25 at 2.) Unlike in United States v. Keith, 2013 WL 5918524 (D.Mass. Nov. 5, 2013)where AOL’s internal process for discovering child pornographyrelied entirely on algorhythmic “hash value” information, the suspect material was opened by a Google employee prior to being turned over to the government. Thus, there was no expansion of the private search, which would have required a warrant.

Attack on Electronic Communications Privacy Act:   Defendant argues that Google violated the ECPA 18 U.S.C. § 2701, et seq. because Google’s supplemental investigation and report exceeded the bounds.

Holding: The government is correct that according to the Google employee’s unchallenged testimony, he did not have access to and did not review any Gmail messages (emails) of Google Talk/Hangout messages. His investigation was limited to posts and comments that he observed within Google+ Circles and Communities.

Finally, even if Drivdahl succeeded in establishing or even sufficiently alleging an ECPA violation, suppression is not a remedy for violations of the ECPA in this situation.  See United  States v .. Cray, 450 F. App’x 923, 930 (11th Cir.2012) cert. denied, 133 S.Ct. 265, 184 L.Ed.2d 45 (U.S.2012) (“In interpreting the Wiretap Act, 18 U.S.C. §§ 2510–2522, which Title I of the ECPA amended to address the interception of electronic communications, we held that, ‘while the Wiretap Act clearly provides criminal and civil sanctions for the unlawful interception of electronic communications, the Act provides no basis for moving to suppress such communications.’ United States v. Steiger, 318 F.3d 1039, 1046 (11th Cir.2003).

Motion Denied.

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This entry was posted in Defenses, Fourth Amendment, Probable Cause, Search Warrant, Suppression, Technology. Bookmark the permalink.

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