Ackerman deems NCMEC a government entity subject to the 4th amendment limitations on search and seizure, which results in changes in your Cyber Tip reports and information you may view.
The National Center for Missing and Exploited Children (NCMEC) is a private corporation tasked by Congress with special law enforcement duties authorized by two primary federal statutes: 18 U.S.C § 2258A and 42 U.S.C. § 5773(b). In addition to offering training and support to law enforcement, NCMEC operates the CyberTipline to combat Internet child sexual exploitation. Internet Service Providers (ISPs) must report any known child pornography violations to NCMEC. They aren’t required to report to any other agency. And NCMEC has been given authority greater than the private citizen: the authority to receive and send child pornography knowingly and to review its contents intentionally. Because of this authority and other duties, in 2016, the court in Ackerman deemed NCMEC a government entity.
Why is this important? The 4th amendment’s protection against unlawful or warrantless searches now applies to NCMEC. ISPs must report child pornography to NCMEC or suffer criminal penalties. Therefore, most ISPs have filter programs that scan emails and attachments for known hash values associated with child pornography. In Ackerman, Walter Ackerman sent an email with 4 images attached. The filter used by AOL, Ackerman’s ISP, identified one of the four images as child pornography. AOL immediately stopped delivery of the email and the company shut down Ackerman’s account. AOL then forwarded a report to NCMEC through the online CyberTipline tool, including all four images from Ackerman’s email. A NCMEC analyst, without a warrant, opened all four images, confirmed all four (not just the one image identified by AOL’s filter) appeared to be child pornography. NCMEC then did further investigation to determine the area where Ackerman lived and forwarded the Cyber Tip to that law enforcement agency for further investigation. Local law enforcement viewed the images, conducted their investigation, and Defendant was prosecuted and convicted of possession and distribution of child pornography. He then appealed, arguing that his motion to suppress the images should have been granted by the lower courts because NCMEC did not obtain a warrant before opening his email with its attachments.
Up to this point, NCMEC had enjoyed the luxury of being considered a private citizen. The 4th Amendment only protects against unreasonable searches undertaken by the government or its agents, so to this point, the 4th amendment did not apply to NCMEC. Further, officers receiving the images from NCMEC were free to review the images NCMEC sent in their report under the “private search” doctrine which holds that the government doesn’t conduct a 4th Amendment search when it merely repeats an investigation already conducted by a private party like AOL or NCMEC. Ackerman changed this by defining NCMEC as a government agency, now subject to the 4th Amendment. However, NCMEC can still view images that were previously viewed by the ISP pursuant to the “private search” doctrine.
What does this mean for you now? Interestingly, the Court in Ackerman clearly recognized the important work NCMEC does and even offered suggestions on perhaps how we all might work around this new issue. Many ISPs have now been trained to either look at the images they send to NCMEC, which they can do as private citizens. The ISP will identify what images they have reviewed in their CyberTipline report, thus allowing NCMEC to similarly review those images without a warrant under the private search doctrine. If the ISP reviews 5 of 10 suspected child porn images, then NCMEC can only review those 5 images. NCMEC similarly have now included in their reports to law enforcement whether images have been viewed by the ISP. You will find that information under the section titled “Additional Information Submitted by the Reporting ESP[1].” It should now include information such as “A representative of the company has reviewed the images in this report.” If you see that, then you as law enforcement can also review those images without a warrant. The other place you will find the information on the Cyber Tip you receive from NCMEC is under “Uploaded File Information.” One question included in this section reads: “Did Reporting ESP view entire contents of uploaded file?” If the answer is “yes,” then you too may view those images. If it says “no,” then you should not view that particular image without a warrant.
Remember, if NCMEC sends you a report confirming that the hash value is a known hash value of child pornography, that is enough for probable cause to get a warrant to search the suspect’s computers and the other images that might be attached that have not been viewed yet.
Johnene Stebbins has been a prosecutor with the Santa Clara County District Attorney’s Office since 1998. Ms. Stebbins has handled the prosecution of three-strike, homicide, robberies, child molest, sexual assault, domestic violence and fraud cases. She is a regular instructor for the California District Attorney’s Association, training prosecutors in evidence. Over the years, Ms. Stebbins has taught various subjects to law enforcement officers in the police academy, as well as legal updates for the Robert Presley Institute of Criminal Investigation.
[1][1] ESP (email service provider)
