District Court: NCMEC violated 4th Amendment by opening image obtained after AOL matched hash values

In United States v. Keith, No. 11-10294 (D. Mass. 2013), the court held that after AOL submitted to the National Center for Missing and Exploited Children (NCMEC) an image possibly containing child pornography, NCMEC violated the Fourth Amendment by opening the image.

AOL maintains a database of hash values of images that have been classified by AOL employees as child pornography. When employees are alerted that an image matches hash values in the database, a report is filed with NCMEC. No AOL employee opens the image to verify it contains child pornography before the report is filed. A NCMEC employee then opens the image, verifies that it meets the federal definition of child pornography, and gets in touch with local law enforcement to pass on the evidence.

Here, a suspect image was sent through AOL, a report was filed, and NCMEC contacted Massachusetts police. Several months later, the defendant took his computer to Staples for repair, and employees notified New Hampshire police that child pornography was found on the laptop. The New Hampshire police shared the information with Massachusetts police, and relying on the NCMEC evidence and police report from New Hampshire police, a search warrant was obtained and executed. Now charged with distribution and possession of child pornography, the defendant seeks to suppress the evidence.

The district court first decided that the hash value matching conducted by AOL did not make AOL a government agent because they were conducting the search for their own purposes. Then, NCMEC did act as a government agent through its "partnership ... with the government," and in examining the contents of the image, they violated the Fourth Amendment. AOL's matching the hash values did "not convey any information about the contents of the file." The viewing of the file by NCMEC "was not authorized by a duly issued warrant."

However, the court continued, holding that probable cause existed for the search purely as a result of the New Hampshire police report regarding the child pornography found by Staples. The court also held that NCMEC and law enforcement were acting in good faith, and as such, "the exclusionary rule should not be applied to suppress the fruits of the search."