NCMEC, AOL and Child Pornography

This post examines an opinion recently issued by a U.S. District Court Judge who sits in the U.S. District Court for the Western District of New York:  U.S. v. Heleniak, 2015 WL 4208622 (2015).  The case presents a rather novel issue, as the judge explains in the opening paragraph of his opinion:

This matter has been referred to the undersigned pursuant to 28 U.S. Code §636(b)(1)(C). . . . The instant matter before the Court is the motion of the National Center for Missing and Exploited Children (`NCMEC’) to appear in this case as amicus curiae . . . and supporting motion by the Government to accept NCMEC's amicus brief. . . .

During the beginning of evidentiary hearing on March 19, 2015, the Government indicated NCMEC's desire to serve as amicus; the Government was to brief this issue by March 31, 2015, and [Joseph S. Heleniak] was to respond by April 30, 2015 . . ., but did not. The matter was considered during the hearing on June 26, 2015, when pro hac vice status was granted to NCMEC counsel Christopher Schmidt. . . ; later pro hac vice status was granted to Logan Rutherford. . . . The matter was deemed submitted as of June 26, 2015.

U.S. v. Heleniak, supra.

As Wikipedia explains, an amicus curiae

(literally, friend of the court; plural, amici curiae) is someone who is not a party to a case and offers information that bears on the case, but who has not been solicited by any of the parties to assist a court. This may take the form of legal opinion, testimony or learned treatise (the amicus brief) and is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. The decision on whether to admit the information lies at the discretion of the court. . . .

(Wikipedia italicizes the terms “amicus curiae” and amicus, while the judge does not italicize either in his opinion.)

And as Wikipedia also explains, pro hac vice,

Latin: `for this occasion’ or `for this event’ (literally, `for this turn’), is a legal term usually referring to a practice in common law jurisdictions where a lawyer who has not been admitted to practice in a certain jurisdiction but has been allowed to participate in a particular case in that jurisdiction. 

The pro hac vice status granted to Schmidt and Rutherford meant they could appeal in this case even though they were, presumably, not admitted to practice in the U.S. District Court for the Western District of New York. And that, finally, brings us to the charges, and the facts, in the case.  As to the former, the opinion explains that

[Heleniak] was charged with transportation of child pornography in interstate commerce, in violation of 18 U.S. Code § 2252A(a)(1) and (b)(1), on various dates in 2013 and 2014, and possession of child pornography on those dates, in violation of 18 U.S. Code § 2252(a)(5)(B) and (b)(2), with forfeiture of computer instruments. . . . 

U.S. v. Heleniak, supra.

The opinion then explains how the prosecution arose, noting that the

alleged pornography at issue was distributed through email by an AOL account. As the Government explained in a previous document . . ., AOL as service provider requires subscribers to agree to terms of service that users comply with applicable laws and not use AOL's facilities to conduct illegal activity, in particular to not post content that is explicit or graphic descriptions of sexual acts. To avoid violations and to enforce the terms of service, AOL will take any technical, legal, or other actions deemed necessary without notice to the user (AOL terms of service). In U.S. v. DiTomasso, 2014 U.S. Dist. LEXIS 152505 (U.S. District Court for the Southern District of New York 2014), Judge Scheindlin found that AOL, in its Member Community Guidelines, . . . had reserved the right to take any action deemed warranted to prevent illegal activity, including cooperating with law enforcement. . .

Among techniques used by AOL is a scanning tool called Image Detection and Filtering Process (`IDFP’) to compare the hash value (or a unique numeric identifier for digital computer files) of scanned email with known files containing apparent child pornography. . . . When IDFP makes a match of hash values for a known pornographic file, the suspected email is reported to the NCMEC CyberTipline, pursuant to 18 U.S. Code § 2258A(a)(1). . . NCMEC was founded in 1984 under the Missing Children's Assistance Act. . . .

U.S. v. Heleniak, supra.

The opinion then explains that Federal Bureau of Investigation

task force officer Michael Hockwater swore an affidavit in support of a federal search warrant that, AOL, in detecting a suspicious file and reporting it to NCMEC, does not inspect the contents of the electronic file to determine whether child pornography exists . . . . The Government later conceded that it learned from AOL that AOL, in fact, did physically review the suspected files before sending them to NCMEC. . . . NCMEC then inspects the file to confirm the presence or absence of child pornography and then reports this information to law enforcement. . . .

U.S. v. Heleniak, supra.

The Judge goes on to explain that, on September 3, 2013,

AOL submitted a report to NCMEC declaring that an AOL user submitted an e-mail with three attachments containing suspicious images of child pornography sent to the same e-mail address. . . . NCMEC representatives then reviewed the e-mail and attachment and concluded that it contained child pornography. . ., referring the matter to the New York State Attorney General's office. On November 4, 2013, New York State Police investigator John Lombardi viewed the images from the NCMEC CyberTipline Report, confirming that these images were child pornography. . . . On January 3, 2014, Lombardi confirmed the AOL user was the defendant living in West Seneca, New York, and the Federal Bureau of Investigation was contacted for a possible federal prosecution. . . .

On January 23, 2014, this Court issued a search warrant for the premises of 174 Broadway Road, West Seneca, New York, [Heleniak’s] residence. . . . [Heleniak] was not in custody when the warrant was executed and [he] volunteered to be interviewed.

During the interview, [Heleniak] allegedly admitted to searching for and downloading child pornography for the past eight months; he would find images, copy and e-mail them to himself. . . . [Heleniak] was shown the three images from the CyberTipline Report and he confirmed that he e-mailed those images to himself. . . .

[Heleniak] provided a written statement . . . wherein he identified his AOL e-mail address (the same as the one reported in the NCMEC report), admitted that he looked at and e-mailed child pornography. During the execution of the warrant, [Heleniak’s] computer was seized and a subsequent forensic examination found ten images of alleged pornography. . . .

U.S. v. Heleniak, supra.  According to the opinion, this

forensic examination also revealed that, after AOL terminated defendant's account, he upgraded his operating system to Windows 8, which would have deleted all child pornography actively saved on the computer. . . . Following execution of the search warrant, [Heleniak] was arrested and charged in a criminal complaint . . . with receipt of child pornography. . . . On January 29, 2014, a second search warrant was executed for [Heleniak’s] former AOL account, revealing that three times e-mails were sent from that AOL address back to that address with child pornography attachments (id.), including the three images in the NCMEC report. In another e-mail, [Heleniak] sent himself an e-mail with ten attachments of child pornography. . . .

U.S. v. Heleniak, supra.

After he was charged, Heleniak filed a motion to suppress, in which he 

seeks to controvert the search warrants for the search of the house and for the AOL account. . . . [Heleniak] argues that NCMEC is a Government agency and thus AOL is an agent of the Government and that NCMEC's review was done without a prior search warrant. . . . [Heleniak] sought (and obtained) a hearing regarding the argued warrantless search and seizure of the images cited in the supporting affidavit for the search warrant. . . . [He] wanted this Court to find whether the acts of AOL `were based upon a relationship it had with federal authorities,’ whether NCMEC's review of the e-mail without a warrant violates [his] 4^th Amendment rights; whether the subsequent search warrants should be controverted and evidence suppressed and whether the warrants were tainted by these unlawful acts. . . .

[Heleniak] pointed out that the Government conceded that in one case, U.S. v. Keith, 980 F.Supp.2d 33 (U.S. District Court for the District ofMassachusetts 2013), that NCMEC was found to be a Government agent when it provides information to law enforcement. . . .

U.S. v. Heleniak, supra.  As this article explains, the 4^th Amendment’s prohibition on “unreasonable” searches and seizures only applies when the search and/or seizure is/are carried out by state agents, i.e., by law enforcement officers or by civilians who are acting on behalf of law enforcement officers.

The judge then took up NCMEC’s motion for

leave to appear as amicus curiae and to file a brief (. . . proposed Amicus Brief). NCMEC explains that it is `in a unique position to explain the intricacies of its mission, goals, and conduct in operating the CyberTipline, and it can bring a specialized perspective to this matter that would be useful to’ this Court. . . . NCMEC has interests beyond this case `because this Court's decision could undermine CyberTipline operations generally’ thus NCMEC seeks to appear as amicus in this case. . . .

NCMEC conferred with the parties, the Government consented to NCMEC's participation while [Heleniak] did not. . . . Counsel for NCMEC also moved for admission pro hac vice . . ., which were granted. . . .  The Government filed a supporting motion for leave to be granted. . . . [Heleniak], while orally objecting on March 19, 2015 . . ., to allowing NCMEC's participation, . . . did not file a response to these motions.

The Government joins in NCMEC's Motion . . . , arguing that NCMEC's participation would be useful to this Court in that the suppression issue here impacts cases beyond this one -- the use of AOL's PhotoDNA and NCMEC's CyberTipline systems in identifying potential pornography as private searches. . . .

The Government notes that courts have allowed amicus participation where cases involve `matters of public interest,’ Andersen v. Leavitt, 2007 WL 2343672 (U.S. District Court for the Eastern District of New York 2007). . . . The Government also highlights that NCMEC could provide `unique information and perspective in this case,’ with NCMEC available to explain its process as sought by [Heleniak] in his motion for a suppression hearing. . . .

NCMEC has `a clear interest in the CyberTipline's continued operation’ that would be impacted by a decision in this case. . . . The Government argues that NCMEC's participation will not delay this case. . . .

U.S. v. Heleniak, supra. 

Having concluded the preface to his decision, the District Court Judge then addressed the substantive issues in the case.  U.S. v. Heleniak, supra.  He began by explaining that

ranting leave for a non-party to appear in a case as amicus is left to the broad discretion of this Court, Citizens Against Casino Gambling in Erie County v. Kempthorne, 471 F.Supp.2d 295 (U.S. District Court for the Western District of New York 2007). . . . `The usual rationale for amicus curiae submissions is that they are of aid to the court and offer insights not available from the parties,’ United States v. El–Gabrowny, 844 F.Supp. 955 (U.S. District Court for the Southern District of New York 1994). . . .

U.S. v. Heleniak, supra. 

The opinion goes on to explain that

[l]eave may be granted where the information from the amicus is `timely and useful,’ Waste Management of Pennsylvania v. City of York, 162 F.R.D. 34 (U.S. District Court for the Middle District of Pennsylvania 1995). . . .  Granting leave should occur where the movant has an interest in the issues that extend beyond the particular case, Warren v. U.S., 2009 WL 1663991, at *1 (U.S. District Court for the Western District of New York 2009). . . .

As summarized by Judge Posner in Ryan v. Commodity Futures Trading Commission, 125 F.3d 1062 (U.S. Court ofAppeals for the 7th Circuit 1997),

`An amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied.’

U.S. v. Heleniak, supra. 

And, finally, the judge explains that, as to this case, the

Government concedes that this is not a pro se litigant situation wherein the amicus assists the Court in presenting an under-represented party's position. . . . NCMEC and the Government have established that NCMEC has a unique perspective that goes to the heart of the issue of the suppression motion -- NCMEC's relationship with the Government regarding reported instances of child exploitation and pornography.

NCMEC has an interest that goes beyond this case regarding the viability of its CyberTipline as currently operated. Its participation in this case is timely and will not delay proceedings. NCMEC's counsel have been granted pro hac vice admission in this case and during the continued hearing on July 21, 2015, it is anticipated that NCMEC witnesses may be called to testify regarding their CyberTipline and receipt of the offending emails that were forwarded to it by AOL.

U.S. v. Heleniak, supra. 

The judge therefore held that “[b]ased upon the above, the National Center for Missing and Exploited Children may appear in this action as amicus curiae and its motion to do so . . . is granted as well as the Government's motion to accept NCMEC's amicus brief.”

U.S. v. Heleniak, supra.