Cable guy did not act as agent of law enforcement when he discovered child pornography on a service stop

In United States v. Jurek, 2012 U.S. Dist. LEXIS 70242 (N.D. Ohio 2012), the court held that an AT&T cable guy did not act as a governmental agent when he searched a customer's computer and found child pornography. The defendant called AT&T to report that his U-verse service was not working correctly, and a technician was dispatched. The technician went to the defendant's home, and was assisted by the defendant's son who called his father when the technician arrived. While working in the web browser (I assume to connect to the router/access point), the technician noticed a lot of pornography sites in the browser history, and one with the word "Lolita." The technician decided to side-track and investigate further, which he admitted was not part of the job he was sent there to do. He went into the Start Menu and viewed the "My Pictures" folder and discovered child pornography. He reported this to his supervisor after he left, and subsequently the situation was reported to law enforcement.

The court held that merely browsing around a customer's computer, while a search in and of itself, was not a search that violated the Fourth Amendment because the technician was not acting on behalf of law enforcement. This makes sense - merely discovering child pornography while monkeying around on a customer's computer isn't acting under the color of law - even if it is later reported to law enforcement. The defendant attempted to argue that the level of detail that the AT&T technician provided to law enforcement implied that he had some sort of background in investigations of this sort. The defendant argued that:

extensive notes and conclusions were made by the Technician, which were very detailed and extensive, and included approximate ages, the presence of pubic hair, the presence of semen, and estimates of age. These details appear to reflect prior knowledge, or at least training or coaching as to what to record if these images are seen during the course of a service call.

Even so, the court said, that alone does not create agency. There had to be some sort of prior discussion, agreement, persuasion, or any other interaction with law enforcement that precipitated the technician's actions.  Unluckily for the defendant, the only reason the technician was using the defendant's computer was because the technician's computer was not working at the time.

While the motion to suppress was properly denied, I think one interesting thing here is the legitimate complaint the customer could have with AT&T. The technician was (1) unprepared for the visit with proper technical equipment and (2) went outside of the scope of his job to investigate the defendant's computer for child pornography -  a clear invasion of the defendant's privacy. The defendant may have allowed use of his computer to achieve the maintenance goals he requested, but I doubt his consent included a grant of permission to wander his hard drive on a hunch.

Unsurprisingly, though, I don't foresee AT&T having to worry about such a complaint in this case.