State v. Andreas W. Rauch Sharak, 2024AP469-CR, 1/16/25, District 4; case activity (including briefs)
Rauch Sharak’s appeal concerns whether Fourth Amendment safeguards are implicated when an electronic service provider (ESP) scans for and reviews digital files in an individual’s account that are flagged as child pornography; and when law enforcement subsequently opens and views any flagged files that the ESP sent to the National Center for Missing and Exploited Children (NCMEC).
In a recent case involving similar facts, the COA recently held that the Fourth Amendment is not implicated because, based on the ESP’s (Snapchat, in that case) terms of service, the account holder has no reasonable expectation of privacy in any files in the account that contain child pornography. See State v. Gasper, 2024 WI App 72, ___ Wis. 2d ___, ___ N.W.3d ___, petition for review pending (Appeal No. 2023AP2319-CR). (See our post on Gasper here). Gasper has been published, and the court is bound to follow it. However, the court believes that while the Gasper court may have reached the right result, it did so for the wrong reason (because the account holder has no reasonable expectation of privacy in the file based solely on the ESP’s terms of service). The COA here believes Gasper’s analysis of an account holder’s reasonable expectation of privacy contrary to existing precedent and legally incorrect, undermines Fourth Amendment protections, and falls short of providing a workable framework to guide future cases.
Issues:
1. Whether a person who holds an electronic account with an ESP retains a reasonable expectation of privacy, as to the government, in files that the ESP obtains from the account, despite terms of service that provide that the ESP will scan the account for illegal content and may report such content to law enforcement.
2. Whether an ESP’s scan and review of files in a person’s electronic account constitute a private search or a government search under State v. Payano-Roman, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548.
3. Whether a law enforcement officer is required to obtain a warrant before opening and viewing any files that the ESP sent to NCMEC, which then sent the files to law enforcement.
Rauch Sharak had a Google Photos account. Google automatically scans digital files that are uploaded by its users for certain “hash values.” In the course of scanning files that Rauch Sharak uploaded to his account, Google’s scan flagged several digital files with the same hash values as known child pornography files. Google submitted a CyberTip to NCMEC along with the digital files and the name, mobile number and email that were associated with the account, and identified the IP addresses that were associated with the uploads. It represented that a Google employee “viewed the file[s] to the extent necessary to confirm that [they] contained apparent child pornography.” NCMEC sent Google’s CyberTip to the Wisconsin DOJ, which issued a Wis. Stat. § 165.505 administrative subpoena to the Internet Service Provider associated with the IP addresses identified in the CyberTip. The Internet Service Provider responded by providing Rauch Sharak’s name and his address in Jefferson County, and the case was referred to the Jefferson County Sheriff’s Office.
Following the referral, a Jefferson County detective opened the digital files that accompanied the CyberTip and visually confirmed that they contained apparent child pornography. The detective then applied for and obtained a warrant to search Rauch Sharak’s residence, to seize any digital devices located at the residence, and to search and analyze those devices. Law enforcement executed the warrant and found more child pornography.
The COA explains that were it not bound to follow Gasper, it would rule as follows:
we would likely affirm the order denying the suppression motion based on the following conclusions. First, Google’s actions (that is, scanning digital files that are uploaded to Google Photos accounts, obtaining and reviewing files that have the same hash values as known child pornography files, and sending such files to NCMEC) constituted a private search. In other words, Google’s actions should not be deemed a government search, and were not subject to the Fourth Amendment. Second, although Rauch Sharak could not reasonably expect Google to refrain from sending the files to NCMEC based on the terms of service, he nevertheless retains a reasonable expectation of privacy as to the content of the files once they are in the hands of law enforcement. Therefore, the Jefferson County detective’s warrantless visual review of the files was a “search” for Fourth Amendment purposes. Finally, the detective’s warrantless search, which replicated Google’s private search, fell within the private search doctrine, which is a recognized exception to the warrant requirement. Accordingly, the detective’s actions did not violate the Fourth Amendment.
The petition goes on to summarize the parties’ arguments and critique Gasper, concluding that the court erred in three respects in that decision:
(1) “the court’s determination that the Snapchat account was the ‘relevant area that was searched’ for Fourth Amendment purposes is inaccurate and could create confusion when applied in future cases.”
(2) “the Gasper court’s determination that contract terms between private persons or entities (that is, Gasper and Snapchat) can eliminate a person’s reasonable expectation of privacy against government action is concerning.”
(3) “we question the soundness of any analysis in which the reasonable expectation-of-privacy determination depends on the specific content of a file.”
