Nonprofit Agency Acted as Gov't Agent in Opening E-mail

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By Lance J. Rogers

Aug. 9 — A national clearinghouse for missing and exploited children should have gotten a warrant before going through the e-mail attachments of a man suspected of trafficking in child pornography, the U.S. Court of Appeals for the Tenth Circuit ruled Aug. 5 ( United States v. Ackerman, 2016 BL 253852, 10th Cir., No. 14-3265, 8/5/16 ).

Although the National Center for Missing and Exploited Children describes itself as a private, nonprofit organization, it is for all intents and purposes an arm of the federal government for purposes of the warrant requirement because it is funded and directed by Congress and enjoys unique law enforcement powers, the court said in an opinion by Judge Neil M. Gorsuch.

“NCMEC's law enforcement powers extend well beyond those enjoyed by private citizens—and in this way it seems to mark it as a fair candidate for a governmental entity,” the court said.

Arm of the Government

This was great detective work by the defense team, John Wesley Hall, Little Rock, Ark., told Bloomberg BNA.

“I just assumed like most people that NCMEC was some private, nonprofit group out there doing stuff on its own,” Hall said. “But no, the court took a look at the federal funding, direction and control and said it's really an arm of the government.”

“We of course don't agree that NCMEC is a government entity or even an agent of the government just because it works with the government while pursuing its mission to help find missing children, reduce child sexual exploitation and prevent future victimization,” said Yiota Souras, senior vice president and general counsel for NCMEC.

Souras told Bloomberg BNA that the Arlington, Va.-based group, which wasn't a party to the case, is still studying the decision to figure out what practical implications the decision carries for the way NCMEC operates.

The case is now on remand for further proceedings, so it is still to early to gauge what NCMEC's next move will be, Souras said.

Day-to-Day Control

The court cited four key factors that were outlined by Ackerman's lawyers in their brief.

  •  NCMEC is statutorily obligated, under 18 U.S.C. § 2258A and 42 U.S.C. § 5773, to collaborate with law enforcement and operate a “CyberTipline” for internet service providers (ISPs) to report possible child sexual exploitation violations. Moreover, NCMEC is the only organization tasked under 42 U.S.C. § 16961 with this special duty to “assist or support law enforcement,” it added.
  •  ISPs are required to report known child pornography violations to NCMEC and face substantial penalties if they fail to do so.
  •  Once NCMEC receives a report from an ISP, it must treat that report as a formal request by the government to preserve evidence.
  •  The NCMEC is statutorily immune from prosecution for handling, forwarding and preserving child pornography.

The court also found guidance in Lebron v. Nat'l. R.R. Passenger Corp., 513 U.S. 374 (1995), which held that Amtrak was part of the government for purposes of a First Amendment challenge because it was given special rights and duties by Congress, dependent on government funding, tasked with furthering government objectives and subject to significant federal control.

“NCMEC is statutorily required to perform over a dozen separate functions, a fact that evinces the sort of ‘day-to-day' statutory control over its operations that the Court found tellingly present in the Amtrak cases,” the court said.

Common Law Agency Invoked

Even if the NCMEC doesn't qualify as a government entity, it was certainly acting as an agent of the government when it opened Walter Ackerman's e-mail and then handed the pornographic images it found in the attachments to the Wichita, Kan., police, the court said. The NCMEC got the e-mail on its CyberTipline from AOL after the provider's automated image detection filter flagged the attachments as suspicious.


Ackerman's brief

Government's brief

Ackerman's reply brief

NCMEC's amicus brief

Citing common law principles of agency and Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602 (1989), the court said that the government not only “encouraged and endorsed and participated” in NCMEC's investigative role, but that it also “knew of and acquiesced in” that activity.

“Congress funded the Center, required AOL to cooperate with it, allowed it to review Mr. Ackerman's email by excepting it from various federal criminal laws, and statutorily mandated or authorized every bit of its challenged conduct,” it said.

The statutes don't require NCMEC to open and view e-mail, the court said. “ But everyone accepts that Congress has authorized and funded NCMEC to do just that.”

“I was really surprised at the level of contact NCMEC has with the government,” Hall said.

Hall writes a blog on the Fourth Amendment and is the author of the treatise Search and Seizure.

Ackerman entered a conditional guilty plea to distribution and possession of child pornography and was given a 170-month sentence after the district court denied his motion to suppress.

‘Hash Value' Algorithm

The court rebuffed the claim that, regardless of whether the organization was an arm of the government, there was no search here because Ackerman didn't have a reasonable expectation of privacy in the e-mails he released into cyberspace.

Opening virtual mail is no less of a search than is opening physical mail, it said.

It also rejected the government's suggestion that NCMEC didn't violate the Fourth Amendment because it was simply repeating an earlier search performed by AOL—a private entity.

AOL ran an algorithm that suggested a “hash value” match between an attachment in Ackerman's e-mail and an image AOL employees had previously identified as child pornography, the court said. “But AOL never opened the email itself,” it said. In that regard, it continued, NCMEC didn't just repeat AOL's actions, it exceeded them.

The court said its conclusion was confirmed by the recent resurrection of “trespass theory” to Fourth Amendment issues.

The U.S. Supreme Court recently explained “that government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing (‘persons, houses, papers, and effects') for the purpose of obtaining information,” the court said.

Many courts have already applied the common law's trespass-to-chattels-doctrine to electronic, not just written, communications, it said.

The court left open the possibility that the e-mail attachments here might be admissible on remand under the so-called “third party doctrine” because Ackerman surrendered his privacy interest in the e-mails when he agreed to AOL's terms. It said the government had preserved that issue and the district court had reserved judgment on it.

Dropbox, Facebook, Google, Microsoft, Pinterest, Snapchat and Twitter all filed a joint amicus brief supporting the government position.

Judge Gregory A. Phillips joined the opinion in full. Judge Harris L. Hartz joined all but the “trespass theory” portion of the opinion.

Daniel T. Hansmeier, of the Federal Public Defender's Office, Kansas City, Kan., argued for Ackerman. Jason W. Hart, of the U.S. Attorney's Office, Wichita, Kan., argued for the government.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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