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Search & Seizure – Child Pornography – ISP Provider – Reporting Obligation

Deborah Elkins//June 15, 2010

Search & Seizure – Child Pornography – ISP Provider – Reporting Obligation

Deborah Elkins//June 15, 2010

An Internet Service Provider’s report to government officials of child pornography images the ISP observed in defendant subscriber’s files, in compliance with a federal statute, did not require the district court to suppress that evidence as a violation of defendant’s Fourth Amendment rights, the 4th Circuit says.

Defendant pleaded guilty, preserving his right to appeal the district court’s order denying his motion to suppress and quashing his subpoena duces tecum under Fed. R. Crim. P. 17(c)(2). Defendant alleges ISP AOL conducted an illegal search on behalf of the government. He also contends the search warrant subsequently executed at his apartment was not supported by probable cause and that the district court erred in granting AOL’s motion to quash defendant’s subpoena duces tecum seeking production of documents that would establish an agency relationship between AOL and the government with respect to the detection of AOL subscribers involved in child pornography. We affirm the district court decision.

There is no question that law enforcement agents did not actually participate in the search at issue here. There is nothing in the record to suggest that law enforcement agents were involved in the search or investigation of defendant’s e-mail transmissions until after AOL reported its discoveries to the National Center for Missing and Exploited Children. Citing Skinner v. Ry. Labor Exec. Ass’n, defendant contends that by mandating AOL’s compliance with 42 U.S.C. § 13032(b)(1), amended and codified at 18 U.S.C. § 2258A, the government actively encouraged the search of his e-mail and transformed AOL into its agent.

We reject defendant’s attempt to draw an analogy between the simple reporting requirement of § 13032 and the regulatory scheme at issue in Skinner authorizing a search. The version of § 13032 in effect when AOL reported defendant required only that an ISP such as AOL report to the Cyber Tip Line at NCMEC in the event it obtained knowledge of facts or circumstances from which a violation of § 2252A involving child pornography was apparent. Nothing in § 13032 precludes AOL or any other ISP from entering into subscriber agreements that actually preclude monitoring or the use of a scanning tool, nor does any portion of § 13032 remotely suggest a congressional preference for monitoring. The penalty provision for failure to report contained in the statute does not persuade us to the contrary. The plain language of § 13032 clears the way for ISPs to report violations of the child pornography laws, not investigate them. We conclude the statutory provision pursuant to which AOL reported defendant’s activities did not effectively convert AOL into an agent of the government for Fourth Amendment purposes.

Nor did the district court err in granting AOL’s motion to quash defendant’s SDT. His request for documents lacked specificity; without it, he is merely fishing for evidence that might support his theory, as if he were in the discovery phase of a civil action.

Finally, there was probable cause to support the search warrant. Defendant claims the warrant was stale, but the information provided by the agent established that no more than four months had passed from the time defendant e-mailed an image depicting child pornography until the warrant was issued.

Judgment affirmed.

U.S. v. Richardson (Traxler, J.) No. 09-4072, June 11, 2010; USDC at Charlotte, N.C. (Reidinger) Anthony G. Scheer for appellant; Amy E. Ray, AUSA; Christopher G. Bubb, AOL LLC, for appellee amicus curiae. VLW 010-2-113, 22 pp.

VLW 010-2-113

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