Fourth Circuit Determines that ISP Compliance with NCMEC Reporting Requirements Does Not Trigger Fourth Amendment Rights
In a recent decision, the Fourth Circuit ruled that a user cannot raise Fourth Amendment objections to disclosure to the Government when an Internet Service Provider complies with the mandatory reporting requirement in 42 U.S.C. § 13032. The Fourth Circuit found that the ISP was not acting as an instrument or agency of the Government when it reported to the Cyber Tip Line at the National Center for Missing and Exploited Children (“NCMEC”) that it “obtain[ed] knowledge of facts or circumstances from which a violation of section . . . 2252A . . . involving child pornography . . . [wa]s apparent.” U.S. v. Richardson, Case No. 09-4072, (4th Cir. June 11, 2010) (quoting 42 U.S.C. § 13032(b)(1)).
In 2004 and 2005, AOL’s Image Detection and Filtering Program (IDFP), a routine scanning program AOL used for security purposes, recognized the digital “fingerprint” of certain files as child pornography and pursuant to the mandatory reporting requirement in U.S.C. § 13032(b)(1), AOL reported the transmission to the Cyber Tip Line. Law Enforcement eventually traced the transmissions to Thomas McCoy Richardson, a registered sex offender. Before trial, Richardson moved to suppress the evidence under the theory that AOL was acting as an agent of the Government when it scanned the email attachments, and therefore, the Government had conducted an unconstitutional and warrantless search of his private email communications.
The district court denied Richardson’s motion to suppress, adopting the Magistrate’s finding that AOL was not acting as the government’s agent because the discovery of the pornography was the result of routine scanning conducted to recognize files that may be detrimental to AOL. Richardson subsequently entered a guilty plea to child pornography charges but reserved the right to appeal the denial of his motion to suppress.
On appeal, the Fourth Circuit affirmed the District Court’s denial of the motion to suppress, finding that AOL was not acting as an agent for the Government. In doing so, the Court distinguished Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989), a case in which the Supreme Court determined that drug testing conducted by private railroads under Federal Railroad Administration regulations triggered the application of the Fourth Amendment because it was not “primarily the result of private initiative.” In rejecting Richardson’s attempt to draw an analogy between the mandatory reporting requirements of § 13032 and the drug testing regulations, the Fourth Circuit found that: (1) § 13032(e) explicitly states that “nothing in this section may be construed to require a provider of electronic communication services . . . to engage in the monitoring of any user. . . ”; (2) that unlike the FRA regulations, nothing in § 13032 precludes ISPs from bargaining away their right to monitor through subscriber agreements; (3) the substantial fines imposed for failure to comply with § 13032 do not compel ISPs to conduct monitoring and, if anything, may encourage ISPs to avoid discovering reportable information; and (4) the immunity from civil liability afforded by § 13032(c) does not apply to the monitoring of investigation of child pornography but only clears the way for ISPs to report violations. Accordingly, the Court found that because AOL was not required to actively search for illicit images under § 13032(b)(1), but only report those which it discovered, AOL’s compliance with the reporting requirement did not transform AOL into a government agent.