MADISON, Wis. (CN) - The Wisconsin Supreme Court on Tuesday weighed the scope of the private search doctrine and the role of the government in two child pornography possession cases where law enforcement viewed reported materials without a warrant.  

Michael Gasper stored child sexual abuse materials in his Snapchat account in violation of the terms of service, which warned that any detection of these materials would be removed and reported to the National Center for Missing & Exploited Children.

Andreas Rauch Sharak also stored child sexual abuse materials in his Google Photos account in violation of the terms of service, which contained the same warnings.

Both platforms used third party software to scan accounts and flagged suspected child sexual abuse materials. Snapchat sent the flagged files directly to NCMEC, while a Google employee viewed the file before reporting.

NCMEC reviewed the material and passed it to the Wisconsin Department of Justice for a policy analyst to review, without a warrant, and assign to the appropriate law enforcement agency. The agency then reviewed the files without a warrant and made arrests.

Both men attempted to suppress the files, arguing that their Fourth Amendment rights had been violated when government agents viewed the files without a warrant.

The circuit court suppressed Gasper's files because Snapchat did not first view them, so the law enforcement review did not fall under the amendment's private search exception. Rauch Sharak's motion was denied.

The appeals court overturned the circuit court in Gasper's case and affirmed it in Rauch Sharak's case. The state and Rauch Sharak respectively appealed.

On Tuesday, the Wisconsin Supreme Court heard back-to-back arguments in both cases, raising the novel question: Do social media users have a reasonable expectation of privacy for contraband in their in-app stored photos?

Though the facts were similar, the arguments diverged sharply. The justices seemed unmoved by either side's claims but took issue with law enforcement's choice to skip warrants despite unsettled caselaw surrounding these types of cases.

Attorney Joseph Owens, representing Gasper, perhaps mistakenly centered his arguments around the reliability of the database and cell phone privacy.

"The government didn't search the phone, the government didn't search the cloud - the government simply searched the file that was passed to it," Justice Brian Hagedorn said, stamping out Owens' cell phone privacy argument that consumed much of his brief.  

Gasper's cell phone argument went beyond the facts of his own case, suggesting that the precedent in this case could be used to suppress the Fourth Amendment rights of anyone.

To support his claim, Gasper pointed to censorship of communist imagery in 1950, liquor bans during the prohibition era and even information about abortion services as examples of what his case could "morph" into.

For the state's turn, the court took particular issue with the state's good faith argument in the Gasper case. Justice Susan Crawford noted that the law doesn't require a warrant to view the cyber tip, but it also does not expressly say that a warrant is not required: "A reasonable attorney should have known there was a split in legal reasoning."

Justice Annette Ziegler went so far as to ask Assistant Attorney General Michael Conway if he would like the opportunity to submit additional briefs should the court consider adding new requirements to the "good faith" exception for warrantless search.

Rauch Sharak went in an entirely different direction, arguing instead that Google acted as an agent of the government when it scanned his account for child abuse materials.

The justices did not take to this argument, either. They pressed Rauch Sharak's attorney, Bradley Novreske, on how the court could be expected to find in his favor if federal law expressly states that the platforms are not required to search for child sexual abuse materials.

Novreske countered that the broader legislative regime indirectly pressures platforms to conduct searches, but that argument read more like a conspiracy theory than actual law.  

Both Google and Snapchat use PhotoDNA to scan for child sexual abuse materials on the platforms. The service is developed by Microsoft and made available to social networking platforms to compare the hash value data of user uploaded files to the NCMEC database of known child pornography photos and videos.

The Justices accepted that PhotoDNA is reliable, but Justice Rebecca Dallet questioned in Gasper's case specifically whether the hash value matching alone satisfied the requirements of the private search doctrine.

Justice Rebecca Bradley conversely argued that perhaps this scheme is supported by the founders' intent, using a hypothetical image presented by Owens earlier in the argument, depicting underage characters from the Peanuts cartoon characters engaging in sexual activity.

"Law enforcement under this paradigm can say, 'thanks for reporting but it's just a cartoon.' The alternative is they get a warrant for somebody's house and rifle through every laptop and drawer ... That is what the founders were trying to protect us all from."

The state asked the court for a narrow holding that would allow law enforcement to continue viewing cyber tips containing child abuse materials without a warrant to avoid that latter scenario.

The Justices, though unimpressed by Gasper's challenge to the PhotoDNA database and Rauch Sharak's government actor argument, are likely to use this case to create a narrow guideline for law enforcement to follow in future cases like these.

The state and the attorneys for the defendants declined to comment on the arguments.

Source: Courthouse News Service