Federal Court Reverses Child Porn Conviction After Illegal Search of AOL Account

August 14, 2016 7:30 am Published by

The defendant, Walter Ackerman, sent an e-mail from his AOL account.  Turns out, AOL has an automatic file detection program that searches attachments to see if they are suspicious for child pornography. This program tagged Ackerman’s e-mail and automatically sent a report including the e-mail and its attachments to the National Center for Missing and Exploited Children (NCMEC).  This is the organization tightly linked to John Walsh of America’s Most Wanted Fame. An analyst for NCMEC then opened the e-mail attachments, confirmed they did in fact have child porn, and notified law enforcement who arrested Ackerman.

Nobody disputed that Ackerman’s property, in this case his e-mail and attachments, was searched without a warrant. Normally this is unconstitutional as the Fourth Amendment requires that searches only be performed with a warrant signed by a judge. However, the government argued that there was no problem here because the search was performed by NCMEC, which is a private agency, and the Fourth Amendment only apples to the government.  The Tenth Circuit Court of Appeals, a federal court directly under the Supreme Court, concluded that the NCMEC has enough special authority from the government that is essentially a government actor for Fourth Amendment purposes. For example, NCMEC is federally funded, and his unique authority and responsibility to investigate crimes against children.

Even so, the government argued that it was AOL, which is, without a doubt, a private party, that performed the search, and that NCMEC only repeated a search that had already been conduced by the private party.  If the government repeats a private party’s search it does not need a warrant but if the government exceeds the search then it does. Here, the Court had to find that NCMEC did go beyond what AOL did because AOL never actually opened the e-mail or its attachments. Only NCMEC did that.

The lesson of the case is that the government must respect privacy and follow the constitution, even when investigating the most offensive crimes.  The case is U.S. v. Ackerman.

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This post was written by Andrew Winters

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