JOHN A. WOODCOCK, JR., Chief Judge.
James Cameron moves to suppress evidence obtained by Yahoo! during its search of photo albums located on the Yahoo! Network. The Court rejects the Defendant's contention that in searching for and reporting to the Government that one of its customers was committing a crime against children, Yahoo! acted as an agent of the Government for Fourth Amendment purposes.
On February 11, 2009, a federal grand jury indicted James Cameron for transporting, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), 2252A(a)(2), 2252A(a)(5)(B), and 2256(8)(A). Indictment at 1 (Docket # 3). The deadline for pretrial motions was set for May 18, 2009. (Docket # 21). On May 18, 2009, Mr. Cameron filed his first Motion to Suppress, which the Court denied on September 1, 2009. Mot. to Suppress Evidence (Docket # 27); Order on Mot. to Suppress, 652 F.Supp.2d 74 (Docket # 67). On February 26, 2010, Mr. Cameron's retained counsel moved to withdraw, Mot. to Withdraw (Docket # 109); the Court granted the motion and appointed counsel on March 5, 2010. Order on Mot. to Withdraw and for Appointment of Counsel (Docket # 116).
On July 2, 2010, Mr. Cameron through new counsel moved to suppress all direct and derivative evidence obtained by Yahoo!'s search of photo albums located on the Yahoo! Network. Second Defense Mot. to Suppress Evidence (Docket # 138) (Def.'s Mot. to Supp.). The Government responded on July 13, 2010. Government's
Between about July 2006 and August 2007, pursuant to a mandatory reporting requirement in 18 U.S.C. § 2258A, Yahoo! reported to the CyberTip Line at the National Center for Missing and Exploited Children (NCMEC) that Yahoo! had detected the transmission of child pornography by Yahoo! subscribers to Yahoo! photo albums and briefcases. Gov't's Resp. at 1. An investigation followed. Def.'s Mot. to Supp. at 5. Additional information from Yahoo! and Google resulted in the issuance of five search warrants: two state search warrants and three "non-conventional"
The basis for Mr. Cameron's motion to suppress is that
Def.'s Mot. to Supp. at 2. The Government responds that because the motion was not filed before the pretrial deadline, Mr. Cameron has waived the right to make the motion. Gov't's Resp. at 3. Even if timely, the Government says the motion is "meritless." Id. at 3. Mr. Cameron recognizes that his motion is not timely but asks the Court to consider the motion because
Def.'s Reply at 3. Mr. Cameron also argues that although he was represented by competent counsel before the pretrial motions deadline, "the issue raised here is only beginning to receive legal attention[.]" Id.
Pursuant to Federal Rule of Criminal Procedure 12(c), the Court has the authority to set a deadline for the
Here, the Court set a May 18, 2009 deadline for pretrial motions. Mr. Cameron's second motion to suppress was filed well after this deadline on July 2, 2010. Mr. Cameron does not contend that his retained counsel was incompetent and in fact admits the opposite. Def.'s Reply at 3 ("Mr. Cameron had retained highly competent" and experienced counsel). Instead, Mr. Cameron contends that there is good cause because "the issue raised here ... only beg[an] to receive legal attention" after the deadline has passed. Id. (citing United States v. Richardson, 607 F.3d 357 (4th Cir.2010)).
To grant or deny relief of waiver is within the court's discretion. United States v. Gomez-Benabe, No. 92-1254, 985 F.2d 607, 611 (1st Cir.1993) (citing United States v. Gomez, 770 F.2d 251, 253 (1st Cir. 1985)). The charges asserted against Mr. Cameron are serious, and his new counsel has brought to the Court's attention a relevant case decided after Mr. Cameron's retained counsel withdrew. The Court finds that there is good cause to grant Mr. Cameron relief from waiver. See United States v. Roberts, No. 3:08-CR-175, 2009 WL 2960409, at *1-2, 2009 U.S. Dist. LEXIS 82090, at *4-5 (E.D.Tenn. Sept. 9, 2009) (recognizing good cause when discovery materials not previously available to the defendants are uncovered).
Mr. Cameron seeks to suppress the direct and derivative evidence uncovered during Yahoo!'s search of photo albums located on the Yahoo! Network. Def.'s Mot. to Supp. at 1. By enacting 18 U.S.C. § 2258A,
Though thoroughly researched and well-argued, the Court finds that Mr. Cameron's arguments are without merit because the actions of Yahoo! as a private party do not implicate the Fourth Amendment. The Fourth Amendment guarantees citizens the right to be free from "unreasonable searches and seizures," U.S. Const. amend. IV, and but for a few exceptions, warrantless searches and seizures are "per se unreasonable." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (internal quotation marks omitted). However, "[t]he Supreme Court has consistently construed the Fourth Amendment protection as limiting only governmental action." United States v. Momoh, 427 F.3d 137, 140 (1st Cir.2005) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). "It is not applicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." Id. (quoting Jacobsen, 466 U.S. at 113-14, 104 S.Ct. 1652).
The First Circuit has rejected the adoption of "any specific standard or test" to determine whether a private citizen has acted as a government agent. United States v. Pervaz, 118 F.3d 1, 6 (1st Cir. 1997). Rather, the First Circuit identified three factors as potentially relevant in deciding this question:
United States v. Silva, 554 F.3d 13, 18 (1st Cir.2009) (quoting Pervaz, 118 F.3d at 6). "[W]hether a private entity ... serves as a mere conduit for the Government in performing a search necessarily turns on the degree of the Government's participation in the private party's activities." Richardson, 607 F.3d at 364 (quoting Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)).
The Fourth's Circuit's formulation differs only tonally from the First Circuit's. Under Fourth Circuit law, the "key factors bearing upon the question of whether a search by a private person constitutes a Government search are (1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some independent motivation." Richardson, 607 F.3d at 364 (internal quotation marks and punctuation omitted). The Fourth Circuit found it significant that "no law enforcement agency specifically asked AOL to search Richardson's email or provided information to cause AOL to scan his emails. Neither did law enforcement officials request that AOL aid the investigation of Richardson except through the ordinary forms of compulsory legal process." Id. at 364-65 (internal quotation marks omitted).
The Fourth Circuit rejected the defendant's attempt to analogize the case to Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) in which a regulatory scheme dictated how railroads conducted breath and urine tests.
The differences between Richardson and this case do not make Yahoo! an agent of the Government for purposes of this case. Critically, the reporting requirement of § 2258A(a)(1) becomes effective when an ISP "obtains actual knowledge of any facts or circumstances" where there is an "apparent violation of" a federal criminal law against sexual exploitation of children. 18 U.S.C. § 2258A(a)(1). The law imposes no affirmative duty on Yahoo! to ferret out child pornography and there is no suggestion that Yahoo! acted in concert with law enforcement in performing the searches that led to the discovery of child pornography in this case. The Pervaz standards for imputing governmental agency to a private business have not been met. Pervaz, 118 F.3d at 6. The Government did not "instigat[e] or participat[e] in the search" or exercise "control ... over the search and the private party." Id.
Mr. Cameron points to Yahoo!'s membership in the "Technology Coalition" and its creating a "Compliance Guide for Law Enforcement" as establishing Yahoo!'s agency relationship to the Government. Admittedly, there is some governmental involvement in the Technology Coalition, including funding, and the Compliance Guide suggests that Yahoo! has elected to cooperate with governmental authorities in the fight against child sexual exploitation. However, Yahoo!'s membership in the Technology Coalition is voluntary, required neither by the Government nor by § 2258A.
Although Yahoo!'s actions are undoubtedly meant to help the Government discover and investigate child pornography crimes, at the end of the day, Yahoo!'s self-interest and the Government's law enforcement interests coincide; Yahoo! and the Government seek to prevent Yahoo! customers from using its services to commit crimes against children. Thus, evaluating the last Pervaz criterion—"the extent to which the private party aims primarily to help the government or to serve its own interests"—the Court concludes that the mere fact Yahoo! and the Government are united against the sexual exploitation of children does not make Yahoo! an arm of the Government when it looks for and reports customers who may have engaged in the criminal misuse of its services.
The Court DENIES Mr. Cameron's Motion to Suppress (Docket # 138).
SO ORDERED.
Def.'s Mot. to Supp. at 6 n. 10. He continues that "[t]he government has not been relieved of its obligation to follow the usual procedures when introducing the results of a Section 2703(g) search warrant execution into evidence[.]" Id.