United States v. Ackerman, No. 14-3265 (10th Cir. 2016)Annotate this Case
Walter Ackerman's internet service provider (ISP) had an automated filter designed to thwart transmission of child pornography. The filter identified one of four images attached to an email sent by Ackerman as pornography, immediately shut down his account, and forwarded a report to the National Center for Missing and Exploited Children (NCMEC). NCMEC then alerted law enforcement. Ackerman would ultimately be investigated and indicted by a federal grand jury on charges of possession and distribution of child pornography. Ackerman entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress the fruits of NCMEC's investigation. On appeal to the Tenth Circuit Court of Appeals, Ackerman argued that NCMEC's actions amounted to an unreasonable search of his email and attachments because no one sought a warrant or invoked any lawful basis for failing to obtain one. "But the Fourth Amendment only protects against unreasonable searches undertaken by the government or its agents — not private parties. So Mr. Ackerman’s motion raises the question: does NCMEC qualify as a governmental entity or agent?" Even if it did, it raised another question pertaining to a “private search:” the government doesn’t conduct a Fourth Amendment “search” when it merely repeats an investigation already conducted by a private party like AOL. So the ancillary issue raised was whether NCMEC simply repeated AOL's investigation, or did exceed the scope of AOL’s investigation. The district court denied Ackerman’s motion to suppress both because NCMEC was not a governmental actor and, alternatively and in any event, because NCMEC’s search didn’t exceed the scope of AOL’s private search. The Tenth Circuit disagreed with that conclusion, finding that NCMEC was indeed a governmental entity or agent and searched Ackerman's email without a warrant. The Court remanded the case for further proceedings.