U.S. v. Bebris

In prosecution on charges of possessing and distributing child pornography, Dist. Ct. did not err in denying defendant’s motion to suppress images depicting child pornography that was first discovered by Facebook employees using PhotoDNA technology, which were reported to CyberTipLine of the National Center for Missing and Exploited Children (NCMEC), which then reported said images to local law enforcement officials. While defendant argued that Facebook employees were essentially government agents, and that their search for child pornography violated his 4th Amendment rights because said searches were done without warrants, Dist. Ct. could properly find through written declarations from Microsoft and Facebook individuals, as well as live testimony from others, that Facebook employees were not governmental agents, where: (1) Facebook had independent business purpose in keeping its platform safe and free from harmful content; (2) Facebook used PhotoDNA technology to identify potential child exploitation content; (3) Facebook employees did not receive training from NCMEC on use of PhotoDNA technology; and (4) Facebook had no record of receiving formal requests from government for identity of account holders associated with accounts reported to CyberTipLine reports. Dist. Ct. also did not err in quashing defendant’s subpoenas seeking live testimony for hearing on motion to suppress, where Dist. Ct. could properly find that: (1) record before it on suppression issue was sufficiently developed to conclude that Facebook was not governmental actor; and (2) information sought by defendant was cumulative to what was before Dist. Ct.