Stephen Meals used a Facebook messaging application to discuss some sexual encounters with A.A., a fifteen-year old. Facebook discovered the chats and forwarded a cyber tip to the National Center for Missing and Exploited Children (NCMEC). NCMEC reported to law enforcement, who obtained a warrant and eventually found child pornography on Meals’s phone.

Meals, charged with several counts related to child exploitation, moved to suppress the chat evidence on the ground that Facebook and NCMEC were government agents. The Fifth Circuit affirmed, because Facebook did not act as a government agent and NCMEC’s search, assuming it was a government agent, did not exceed the scope of Facebook’s cyber tip.

The Fifth Circuit explained that, under the private-search doctrine, when a private actor finds evidence of criminal conduct after searching someone else’s person, house, papers, and effects without a warrant, the Government can use the evidence, privacy expectations notwithstanding. In short, if a non-government entity violates a person’s privacy, finds evidence of a crime, and turns that evidence over to the Government, the evidence can be used to obtain warrants or to prosecute. The Fourth Amendment restrains the Government, not private citizens.

The private-search doctrine doesn’t apply if the private actor was an instrument of the Government when he acted. Also, if the Government, without a warrant, exceeds the scope of the private actor’s original search and discovers new evidence that it was not substantially certain to obtain, the new evidence may be suppressed.

Meals argued Facebook was a Government agent because of 18 U.S.C. 2258A(a), which requires electronic communication services to send cyber tips to NCMEC for all instances of child exploitation they discover on their platforms. The Fifth Circuit rejected that argument because the statute doesn’t require internet companies to actively search for such evidence.

Meals next argued that NCMEC exceeded the scope of Facebook’s search by reviewing messages Facebook provided. According to Meals, NCMEC needed a warrant before reviewing Facebook’s cyber tip. Not so, the court said. NCMEC did not exceed the scope of the tip merely by reviewing the identical evidence that Facebook reviewed. Plus, NCMEC did not open any unopened attachments or chats.

The court affirmed Meals’s 600-month sentence and life-long term of supervised release.

United States v. Meals