Seventh Circuit: Facebook’s Reporting of Child Pornography Does Not Make It a Government Actor
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
In 2018, Alexander Bebris sent messages to a woman via Facebook Messenger, a private messaging system on Facebook. Facebook Messenger utilizes PhotoDNA, a Microsoft image-recognition program that provides the capability to scan images uploaded onto the company’s platform and compares the “hash,” or essence of a photo, with a database of known images of child pornography. After a “hit,” Facebook reviews the flagged images and sends them to the National Center for Missing and Exploited Children (“NCMEC”) through the CyberTipline.
Here, three images that Bebris sent were flagged as suspected child pornography, and Facebook forwarded them to NCMEC. NCMEC then forwarded the information to state law enforcement agencies in Wisconsin. Wisconsin authorities subpoenaed internet data and the IP address that uploaded the photos, which belonged to Bebris. They then obtained a search warrant and executed it at Bebris’s residence. There, they seized electronic devices and a computer that contained child pornography files.
Bebris was charged in federal court with possessing and distributing child pornography. He filed a motion to suppress the evidence, and argued that Facebook, NCMEC, and law enforcement violated his Fourth Amendment rights by searching his Facebook messages without a warrant. He further argued that Facebook assumed the role of a government agent by monitoring for and reporting suspected child pornography to NCMEC.
Following an evidentiary hearing and supplemental briefing, the district court denied Bebris’s motion to suppress. The district court found that Bebris lacked a reasonable expectation of privacy in his messages because Facebook’s Community Standards and terms of service warned users that Facebook reports child pornography if it becomes aware that it is being sent. The district court also found that Facebook served as a private actor, and that the search therefore did not implicate the Fourth Amendment. Bebris entered into a guilty plea, reserving the right to appeal the district court’s denial of his motion to suppress. He appealed to the U.S. Court of Appeals for the Seventh Circuit.
On appeal, Bebris challenged Facebook’s search of his messages, asserting that the search violated the Fourth Amendment. His chief challenge was that Facebook’s use of PhotoDNA technology converted Facebook into a government agent for Fourth Amendment purposes. The court noted that Bebris added a “twist” to this argument too. He asserted that he was deprived of the opportunity to prove that Facebook acted as a government agent because the district court quashed his subpoena for live testimony from Facebook at hearing. He alleged that this violated the Confrontation Clause of the Sixth Amendment.
The court of appeals explained that the protections of the Fourth Amendment apply against governmental action and are “wholly inapplicable” to a search or seizure, even an unreasonable one, by a private individual not acting as an agent of the government or with the participation or knowledge of the government. Where an private individual learns of a defendant’s private information because the defendant revealed it, the defendant’s expectation of privacy no longer exists. Known as the third party doctrine, the court stated that “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed.”
However, the court noted that the government may not “simply enlist” private individuals to work on its behalf to obtain information in an attempt to avoid the warrant requirement. A private individual would become a state actor for Fourth Amendment purposes in such a case. The court stated that the defendant has the burden of proving that a private individual was a government actor. The court of appeals agreed with the district court that Bebris did not meet this burden.
The court found the declarations submitted into evidence showed that Facebook was not directed by the government or NCMEC to take any specific action pertaining to Bebris, that Facebook was not in contact with the government or NCMEC with respect to Bebric prior to the PhotoDNA hit, and that Facebook had its own business purpose for keeping its platform free from child pornography. In addition, the court mentioned that several sister circuits have held that a company that automatically scans electronic communications on its platform does not become a government agent merely because of the mutual interest in eradicating child pornography. As a result, the court of appeals found that the district court properly denied Bebris’s motion to suppress.
As for Bebris’s Sixth Amendment claim, the court of appeals stated that Bebris’s argument that the Confrontation Clause is applicable during an evidentiary hearing on a motion to suppress is not supported by case law. The court stated that it and other circuit courts have endorsed that the right to confrontation is a trial right. The court therefore declined to review the district court’s decision in quashing the Facebook subpoena under a Confrontation Clause analysis.
Read the full case: United States v. Bebris
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