State v. Gasper, 2023AP2319, petition for review of a published decision of the court of appeals, granted 3/13/25; case activity
State v. Rauch Sharak., 2024AP469-CR, accepting review of a certification, granted 3/13/25; case activity
Readers seeking to understand the contours of this issue are directed to COA’s certification in Rauch Sharak, which presents the following issues for certification:
- 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.
- 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.
- 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.
In essence, these cases focus on the cozy relationship between large tech companies, like Google, and law enforcement agencies who often work together to monitor what individual users are uploading to the cloud and ensuring that these data storage tools do not become repositories for illegal child pornography. Although there is ample federal law in this area, this will be SCOW’s first opportunity to address the issue and to resolve an apparent disagreement between two appellate districts as to how those authorities ought to be interpreted and applied.
