The discovery of child porn is not enough to justify warrantless email searches

Child pornography is something that, understandably, raises hackles and many people would argue that anything possible should be done to pursue those believed to be involved. But a court in the District of Kansas has ruled that the discovery of images of child porn is not enough to justify warrantless email searches by agents.

The 10th Circuit Court of Appeals ruled that email attachment images obtained by the National Center for Missing and Exploited Children (NCMEC) should be dismissed as evidence as they were gathered via what was deemed to be a warrantless search.

It's a ruling that could have far reaching ramifications, but it's one that is likely to divide privacy advocates. The case involved Microsoft, Dropbox, Facebook, Google, Pinterest, Snapchat and Twitter, but it was images sent via an AOL email account belonging to Walter Ackerman that were at the center of things. AOL's automated checking systems picked up the suspicious images and reported them to the NCMEC. The agency then accessed his emails, finding four illegal images; this is what constituted a warrantless search.

Despite admitting to the distribution of child pornography, Ackerman's lawyers filed to suppress the email evidence on the grounds of the search of his emails being conducted illegally. In its ruling the court wrote:

The Fourth Amendment only protects against unreasonable searches undertaken by governments or its agents -- no private parties. So Mr Ackerman's motion raises the question: does MCMEC 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 the 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 MCMEC 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.

The judge concludes by saying: "We are confident that NCMEC's law enforcement partners will struggle not at all to obtain warrants to open emails when the facts in hand suggest, as they surely did here, that a crime against a child has taken place". But the fact remains that a warrant was not obtained, and the rights and wrongs of the ruling will no doubt be debated for some time to come.

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