Eighth Circuit Rules Private ISP Was Not Acting as Government Agent – U.S. v. Stevenson

August 19, 2013 by David S. Seltzer

The legality of a search is vitally important in cases of child pornography crimes, because with child porn, mere possession is enough to create a long prison sentence. If the search was not legal under the Fourth Amendment to the U.S. Constitution, the resulting evidence must be thrown out as the fruit of a tainted search. And because the search was generally enough to establish possession, the prosecution often doesn’t have a case after the results are thrown out. But civil rights like this only apply to the government; citizens have limited civil rights when they interact with private businesses like internet service providers. That was the message in United States v. Stevenson, a case from the Eighth U.S. Circuit Court of Appeals focusing on evidence uncovered by AOL. The court ultimately ruled AOL was not a government agent because it was required to report child porn it discovered in Stevenson’s email.

Stevenson emailed a child pornography image from his AOL account to his Gmail account. AOL uses technology that can spot child porn and automatically notify the National Center for Missing and Exploited Children. In this case, the NCMEC passed the tip along to Iowa authorities, who determined that Stevenson owned both accounts and got a warrant to search his home. A forensic search turned up 721 images and four videos. After he was charged, Stevenson moved to suppress the evidence, arguing that AOL’s scan violated his constitutional rights. He served AOL with a subpoena for related documents and asked for a hearing on them. The district court quashed the subpoena and denied the motions, saying AOL is a private actor not subject to the Fourth Amendment. Stevenson entered a conditional guilty plea and appealed.

On appeal, Stevenson argued that AOL was effectively an agent of the government because statutes or regulations encourage it to conduct this type of search. The Eighth Circuit did not agree. The U.S. Supreme Court has held that private companies are agents when regulations create a strong preference for testing, in a case involving laws giving railroad companies broad drug-testing powers. But here, the Eighth said, AOL is not expressly authorized to scan users’ emails or forbidden from contracting that right away, and users are not legally required to submit to the scanning. Thus, the court concluded that the reporting requirement was not adequate to make AOL an agent of the government. For the same reason, the court found, the trial court was correct not to order a hearing on the issue of whether AOL was a government agent; there was no contested fact issue. Finally, it upheld the quashing of Stevenson’s subpoena; even if AOL documents show what Stevenson anticipated, the court said, this would not establish that it was a government agent.

Even AOL users who are not involved in anything illegal might be taken aback to learn that their emails are automatically scanned for child pornography, viruses and other evidence of cyber crimes. But the Eighth Circuit is correct that private companies are not subject to the Fourth Amendment restrictions on searches. Nonetheless, as a defense attorney who handles many child pornography possession cases, I question the legality of a search whenever it makes sense in the circumstances. Law enforcement officers make mistakes just like everyone else, and those mistakes sometimes infringe on our civil rights. By aggressively finding and exposing these violations, defendants can break down the case that law enforcement has built against them.

If you’re facing serious criminal charges related to the Internet or technology, you should contact the experienced cyber crime defense attorneys at Seltzer Law, P.A. We answer the phone 24 hours a day and seven days a week, because we know police don’t stop working after business hours. To learn more or set up a free consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

One-Week Delay Between Suspicious Behavior and Warrantless Search Was Too Long – U.S. v. Valerio

Florida High Court Requires a Warrant Before Police May Search Arrestees’ Phones – Smallwood v. State

Police May Not Use Drug Sniffing Dogs Outside Front Doors, Supreme Court Rules – Florida v. Jardines