State Action and the 4th Amendment

As I’ve noted in earlier posts, the 4^th Amendment’s prohibition on “unreasonable” searches and seizures only applies to “state action,” i.e., to searches and/or seizures that are carried out by law enforcement officers or others who are acting on behalf of the federal government or a state government. As Wikipedia explains, the 4^th Amendment “applies to governmental searches and seizures, but not those done private citizens or organizations who are not acting on behalf of a government.”

So if a law enforcement officer violates the 4^th Amendment by searching your or your property without having a search warrant or a valid exception to the warrant requirement, you can move to suppress any evidence the officer found if it’s being used in a criminal proceeding. And if the search didn’t turn up any evidence and you aren’t prosecuted for anything, you can sue the officer for violating your rights in what’s called a Bivens action and/or you can bring a suit for violating your rights under federal civil rights statutes.

If a private citizen engages in conduct that would violate the 4^th Amendment if it were carried out by an agent of the state, e.g., a law enforcement officer, you can sue that person for trespass or invading your privacy or any other civil cause of action you can come up with. But as I noted in an earlier post, if a private citizen engaged in conduct that would violate the 4^th Amendment and thereby discovers evidence that implicates you in a crime, you’re out of luck if that person takes the evidence to the police.

That brings us the case this post is about: U.S. v. Richardson, 2010 WL 2340233 (U.S. Court of Appeals for the 4^th Circuit 2010). Thomas Richardson pled guilty to possessing and transporting child pornography in violation of 18 U.S. Code § 2252A but, in so doing, preserved his right to appeal the federal district court’s denying his motion to suppress. This is how the prosecution came about:

On June 10, 2004, AOL, pursuant to a mandatory reporting requirement . . . in 42 U.S. Code § 13032(b)(1) [now codified in 18 U.S. Code § 2258A], reported to the Cyber Tip Line at the National Center for Missing and Exploited Children (`NCMEC’) that AOL had detected the transmission of child pornography images by a subscriber using an e-mail address called knifeisland@aol.com. NCMEC . . . passed this information to the North Carolina State Bureau of Investigation (`SBI’), which served AOL with an administrative subpoena for subscriber information related to the `knifeisland@aol.com’ address. AOL determined that the account was registered to Richardson at 2541 Pine View Lane, Apartment H, Gastonia, North Carolina. . . . Richardson no longer resided at the 2541 Pine View Lane address and no forwarding address was available. . . .

[O]n September 2, 2005, AOL reported to NCMEC that it had detected the transmission of two e-mail messages containing . . child pornography from an account named `tr1029@aol.com’ by a person using the screen name `tr1029.’ NCSBI Agent J.D. White initiated an investigation. . . Pursuant to another administrative subpoena, AOL indicated that the `tr1029@aol.com’ account was registered to Richardson at 8508 Park Road, Charlotte, North Carolina. The Park Road address . . . was the location of a UPS store. Further investigation . . . revealed Richardson was residing in Charlotte at 7805 Andover Woods Drive, Apartment 604, and linked Richardson through his driver's license to the Park Road address of the UPS store (where [he] had apparently received mail for a period of time) and the Pine View Lane address in Gastonia. . . .

U.S. v. Richardson, supra. The agents checked Richardson’s criminal history and found he was a “registered sex offender in South Carolina as a result of two 1996 convictions.” U.S. v. Richardson, supra. On November 17, 2005, Agent White applied for and obtained a warrant to search “Richardson's Andover Woods Drive apartment in Charlotte primarily for evidence of Richardson's use of a computer to view, store, and transmit images of child pornography.” U.S. v. Richardson, supra. “In support of his probable cause showing, Agent White included the information disclosed by AOL pursuant to the administrative subpoenas”, along with the other evidence located by the NCSBI agents. U.S. v. Richardson, supra. On that same day, officers executed the search warrant at Richardson's Andover Woods apartment, and found “28 images and 21 video files containing child pornography” on his computer. U.S. v. Richardson, supra.

Richardson moved to suppress the evidence, arguing that “in reporting the contents of his email, AOL was acting as an agent of the Government and had therefore conducted an unconstitutional warrantless search of his private email communications.” U.S. v. Richardson, supra. AOL’s Assistant General Counsel John LoGalbo submitted a declaration to show there was no “agency relationship” between AOL and the government:

LoGalbo denied that law enforcement asked AOL to search Richardson's email or otherwise participate in the investigation . . . `except through . . . compulsory legal process.’ . . . LoGalbo stated, AOL detected the illegal images attached to Richardson's email transmissions through AOL's Image Detection and Filtering Program (`IDFP’), one of several internally-developed scanning programs designed to keep AOL's systems secure. The IDFP . . . recognizes and compares the digital `fingerprint’ (known as a hash value’) of a file attached to a subscriber's email with the digital `fingerprint’ of a file AOL previously identified as containing an image depicting child pornography. LoGalbo indicated that if the IDFP detected a match suggesting an email transmission contained child pornography images, AOL notified the NCMEC as required by § 13032. According to LoGalbo, `AOL developed and began using the IDFP in 2002 in order to protect its rights and property against lawbreakers, prevent the network from being used to carry or store contraband . . ., and fulfill its legal obligation to report the transmission . . . of child pornography on its systems.’

U.S. v. Richardson, supra. The district court judge denied Richardson’s motion to suppress because it found that AOL's “`discovery of [child pornography] associated with [Richardson's] email account was the result of routine scanning the company conducts to recognize files that may be detrimental to AOL.’” U.S. v. Richardson, supra. In other words, AOL was acting as a private entity, not as an agent of the state.

Richardson raised the same issue with the 4^th Circuit Court of Appeals, which found that “[a]ssuming AOL conducted a search within the meaning of the Fourth Amendment, . . . AOL's actions did not equate to governmental conduct triggering constitutional protection.” U.S. v. Richardson, supra. As I noted in an earlier post, a civilian becomes an agent of the government only if two conditions are met: (i) the person acted with the intent to help law enforcement; and (ii) the government knew of the person's activities and either acquiesced in or encouraged them. U.S. v. Steiger, 318 F.3d 1029 (11th Circuit Ct. Appeals, 2003).

The 4^th Circuit noted that “law enforcement agents did not actually participate in the search at issue here”, nor did they “request that AOL aid in the investigation” except though “`ordinary forms of compulsory legal process’”, i.e., the two administrative subpoenas. U.S. v. Richardson, supra. Complying with a subpoena doesn’t transform a civilian into an agent of the state.

Richardson’s primary argument, which seems logical, is that “by mandating AOL's compliance with the reporting scheme set forth in” in § 13032, “the Government actively encouraged the search of his email and transformed AOL into its agent.” U.S. v. Richardson, supra. Richardson relied on the U.S. Supreme Court’s decision in Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). In Skinner, the Court considered whether the 4th Amendment applied to mandatory and permissive drug testing by private railroads under regulations imposed by the Federal Railroad Administration. The Court held that the 4^th Amendment applied to both; its application to the mandated testing was clear, and the Court found that the government exerted enough control over the permissive testing that it was not “primarily the result of private initiative” and therefore implicated the 4^th Amendment. Skinner v. Railway Labor, supra.

The 4^th Circuit rejected Richardson’s effort to draw an analogy between the

simple reporting requirement of § 13032 and the regulatory scheme at issue in Skinner. Unlike the regulatory scheme at issue in Skinner, § 13032 neither directed AOL to seek evidence of child pornography in certain circumstances nor prescribed the procedures for doing so in the event AOL decided to ferret out subscribers using its system to transmit illegal digital images. Congress made abundantly clear that § 13032 was not to be interpreted as requiring an ISP to monitor a subscriber's internet activity, explicitly stating that `[n]othing in this section may be construed to require a provider of electronic communication services . . . to engage in the monitoring of any user, subscriber, or customer of that provider, or the content of any communication of any such person.’ 42 U.S. Code § 13032(e). authorizing a search. The version of § 13032 in effect when AOL reported Richardson required only that an ISP . . . report to the Cyber Tip Line at NCMEC in the event it `obtain[ed] knowledge of facts . . . from which a violation of. . . 2252A . . . involving child pornography . . . [wa]s apparent.’ . . .

U.S. v. Richardson, supra. The 4^th Circuit also rejected Richardson’s other argument:

[T]he penalty provision for failure to report contained in § 13032 does not persuade us to the contrary. Richardson suggests ISPs such as AOL would be compelled as a practical matter to monitor their subscribers in the face of substantial monetary fines imposed against `[a] provider . . . who knowingly and willfully fails to make a report’ under § 13032(b)(1). 42 U.S. Code § 13032(b)(4). As AOL points out, the converse is just as likely to be true, if not more so -- if substantial fines are imposed for the failure to report known facts suggesting a violation of federal child pornography laws, ISPs and others subject to such penalties might just as well take steps to avoid discovering reportable information.

U.S. v. Richardson, supra. (The court noted that an “initial failure to report carried a fine of up to $50,000, while a subsequent failure carried a possible fine of $100,000.” U.S. v. Richardson, supra (citing 42 U.S. Code § 13032(b)(4)).)

Finally, the 4^th Circuit rejected Richardson’s argument that the fact § 13032(c) gave ISPs immunity from civil liability for complying with the monitoring requirements of the statute meant the government had “deputize[d] ISPs in the Government’s effort to fight child pornography.” U.S. v. Richardson, supra. The 4^th Circuit found that this provision immunizes ISPs “for mistaken and incorrect reports issued to the NCMEC, and in no way encourages surreptitious searches.” U.S. v. Richardson, supra.

This is the only case I can find that addresses this issue. Richardson might try to get the U.S. Supreme Court to review the issue, but I suspect that’s a very long shot.