S. Dist. California finds Yahoo and Facebook investigations to be private searches in child exploitation prosecution. Also finds no reasonable expectation of privacy in log in or IP information.

In this case, Yahoo.com was alerted by Xoom.com that Xoom had seen child pornography activities on the Yahoo platform. Yahoo initiated an investigation to see if any activities violated its terms of service or needed to be reported to law enforcement.

Yahoo reported findings to NCMEC and later to the Federal Bureau of Investigation and the Department of Homeland Security. Yahoo hten initiated a second investigation which produced information about the sale of child exploitation material. This was also forwarded on.

Yahoo also supplied information regarding buyers to NCMEC, including subscriber and IP login information for the buyer accounts.

These efforts led to a meeting between representatives of Yahoo, the FBI and Homeland Security. Law enforcement served preservation requests on Yahoo accounts. This led to financial records searches as well as search warrant applications for yahoo accounts.

Eventually, this led to service of process for the Defendant’s Facebook accounts. This included an administrative subpoena on Facebook for one particular account which stated “THIS IS A CHILD EXPLOITATION MATTER” and requested that Facebook not disclose the existence of the subpoena. The administrative subpoena sought basic subscriber information and IP log-in information.

This led Facebook to do their own investigation, which included examining the account and subsequently suspending the account due to a violation of their community standards. They found and reported to NCMEC three images that appeared to depict sexual exploitation of a minor.

Finally, the F.B.I. requested search warrants for the Defendant’s luggage and his home, including searches of his digital devices. The Defendant was arrested at an airport from a domestic flight. He was charged with travel with intent to engage in illicit sexual conduct. He moved to suppress the evidence on the grounds that law enforcement engaged in a warrantless search of his private communications. The Government’s response was that the Fourth Amendment was not implicated as Facebook and Yahoo are private actors.

Using a Ninth Circuit test for private party searches vis a vis the Fourth Amendment, the Court asked 1) whether the government knew of and acquiesced in the intrusive conduct; and (2) whether the party performing the search intended to assist law enforcement efforts or further his own ends.

Because Yahoo was alerted by Xoom, Yahoo’s investigation and report to NCMEC was required by law. Law enforcement was not involved in any way until after this first investigation was completed and Yahoo’s report was sent to NCMEC. Subsequent investigations centerd around Yahoo terms of service, and investigated additional suspected buyers and sellers of child exploitation materials. The Court found no evidence that law enforcement was involved in any way with the decision by Yahoo to undertake a second investigation or that law enforcement was involved in the second investigation. The Court found the same to be true of Yahoo’s third investigation. (The Court made similar later conclusions regarding Facebook).

The Court found that Yahoo had a business interest in enforcing its terms of service and ensuring that its products are free of illegal conduct, in particular, child sexual abuse material. Therefore, Yahoo’s work did not violate the Fourth Amendment. The Court found that Yahoo’s statutory compliance with federal law did not turn Yahoo into a Government actor.

The Defendant also contended that Carpenter made the Government’s preservation requests (subpoenas without warrants) to service providers like Yahoo and Facebook a Fourth Amendment violation. The Court rejected this argument, deciding that the Defendant had no reasonable expectation of privacy in the subscriber information and the IP log-in information.

The case is United States v. Rosenow, 2018 U.S. Dist. LEXIS 198054, 2018 WL 6064949 (S.D. CA) November 20, 2018.

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