Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma

Public-facing platforms such as social media services can give law enforcement a direct view into illegal online activities, providing crucial evidence for criminal investigations and prosecutions. But not all online communications are open to the public. Before law enforcement can search the contents of emails, chat logs and other private communications, the Fourth Amendment generally requires that they obtain a warrant supported by probable cause.

What about the private companies that provide the services? Can’t they automatically or manually search their users’ private accounts for evidence of a crime and then share that information with the government? The answer to that question, from a Fourth Amendment perspective, is not always easy, and it points to one of the most substantial barriers to public-private partnerships in investigating distributors of child sex abuse material and other illegal content.

In this paper, I explore the complex issue of private companies that might search for illegal content for a variety of reasons and might have some interactions with the government as they conduct their investigations. At a certain point, the law treats these companies as government agents, and the evidence they collect is subject to the same Fourth Amendment restrictions as if the evidence had been collected by government-run law enforcement agencies.

The paper argues that the Fourth Amendment government agency problem requires platforms to walk a fine—and sometimes untenable—line in searching for private user content that contains child sex abuse material and other illegal material. Under the private search doctrine, platforms could reduce the chances of a subsequent government inspection of user content by reviewing it before sending it to law enforcement. But if platforms work too closely with law enforcement, a court might view the platforms as government agents whose own searches are subject to the Fourth Amendment.

For an in-depth discussion of the paper, listen to this Lawfare Daily podcast episode.

The paper is also available here.

The views expressed are only those of the author and do not reflect the views of the Naval Academy, Department of Navy, or Department of Defense. The author was not compensated by outside parties for this paper.