United States v Ackerman

After conditionally pleading guilty to child pornography charges, Ackerman appealed the denial of his motion to suppress. The panel, with one judge joining the opinion n part, reversed. It held that the National Center for Missing and Exploited Children, which forward the alleged child pornography to law enforcement, was a government entity as it is statutorily obligated to establish and maintain an electronic tip line, internet service providers must report child pornography violations to the Center, anything coming to the tip line is treated as having a government request to preserve it, the Center receives the bulk of its funding from Congress and has permission to receive and view child pornography which is contraband. The panel noted the government did not dispute any of this and held Center’s amicus brief was not the proper vehicle to raise arguments on the issue and even it were the fact that Center was once a private entity and received money from other sources does ton change the analysis. It held that alternatively Center is the federal government’s agent as the government knew about Center’s activities, ordered the materials received by Center to be forwarded to law enforcement and perform its other tasks all while backed up by criminal sanctions to internet service providers who do not report child pornography violations to Center and Center did forward the email attachments to law enforcement to aid those agents in investigating Ackerman. It held that opening the email and its attachments was a search and that the private search doctrine did not change the analysis as Center exceeded the scope of AOL’s automatic scan of one attachment for digital similarity to child pornography images and thereby exposed non-contraband information. Two judges also held that Supreme Court precedent on private searches appears to be on unfirm ground given newer precedent that physical intrusion can violate the Fourth Amendment as well entering an area of protected privacy expectations and the opening of the email and attachments here seems to be a trespass to chattels for Fourth Amendment purposes. The panel finally noted the government did not argue any theories for avoiding suppression and further noted the Center can continue its work perhaps with new procedures or perhaps law enforcement will now obtain warrants and finally left all open questions about the case and the issues for another day.