U.S. District Court for Nebraska denies Carpenter motion finding internet service provider’s report to NCMEC was a private search.

The posture of this case is that the District Court was reviewing the report and recommendations of a Magistrate Judge regarding a Motion to Suppress Evidence in a child pornography prosecution.

In this case, a search warrant was executed of a home where a large number of files were recovered. The evidence came to law enforcement from a tip from Google. Law enforcement then served a subpoena on his internet service provider defendant to get certain subscriber and IP information.

The basis of the motion to suppress was twofold: that a warrant was required to acquire the subscriber information and IP address, as well as that NCMEC required a warrant before opening any of the files.

The Court upheld the Magistrate’s recommendation to deny the Motion to Suppress. With respect to the first issue, the Court held that this information sought by subpoena is covered by the third party doctine because the information is what one would see in a traditional business record instead of one’s personal movements from place to place.

Regarding the second issue, the Court denied the motion because the court considers Google a private actor. Because the defendant’s file alerted their hash filtration systems and because they purportedly examined the files, the Court decided that future actions by NCMEC and local law enforcement were irrelevant.

For lawyers who are facing this issue, one should not only read this opinion, but also the split of authority cited in the opinion (United States v. Reddick, 900 F.3d 636, 638-39 (5th Cir. 2018); United States v. Ackerman, 831 F.3d 1292, 1306-07 (10th Cir. 2016); United States v. Stevenson, 727 F.3d 826, 831 (8th Cir. 2013)).

The case is United States v. Gregory, 2018 U.S. Dist. LEXIS 206644, 2018 WL 6427871 (D. NE) December 7, 2018.

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