United States v. Alexander Bebris ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3291
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEXANDER BEBRIS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 19-cr-2 — William C. Griesbach, Judge.
____________________
ARGUED MAY 13, 2021 — DECIDED JULY 15, 2021
____________________
Before SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit
Judges.
KIRSCH, Circuit Judge. Alexander Bebris sent child
pornography over Facebook’s private user-to-user messaging
system, Facebook Messenger, in 2018. Bebris’s conduct was
initially discovered and reported by Facebook, which licenses
a “hashing” or (in overly simplified layman’s terms) image-
recognition technology developed by Microsoft called
PhotoDNA. PhotoDNA provides the capability to scan
2 No. 20-3291
images uploaded onto a company’s platform and compares
the “hash” (or essence) of a photo with a database of known
images of child pornography. 1 Thus, through that technology,
three of Bebris’s messages were flagged by PhotoDNA.
Facebook employees reviewed the flagged images and
reported them to the CyberTipline of the National Center for
Missing and Exploited Children (“NCMEC”), as required by
18 U.S.C. § 2258A(a). NCMEC then reported the images to
Wisconsin law enforcement officials, who eventually
obtained a warrant and searched Bebris’s residence, where
they found a computer containing numerous child
pornography files. Bebris was charged federally with
possessing and distributing child pornography.
Bebris argued before the district court that the evidence
against him should be suppressed, specifically contending
that Facebook took on the role of a government agent (subject
to Fourth Amendment requirements) by monitoring its plat-
form for child pornography and reporting that content. On
appeal, Bebris reprises this argument but primarily contends
that he was deprived of the opportunity to prove that Face-
book acted as a government agent because the district court
denied his Federal Rule of Criminal Procedure 17(a) sub-
poena seeking pre-trial testimony from a Facebook employee
with knowledge of Facebook’s use of PhotoDNA. The district
court, however, properly exercised its discretion in quashing
1 The terms used in the record to describe the type of material in the data-
base, which is administered by the National Center for Missing and Ex-
ploited Children, include “child exploitation material,” “images depicting
child sexual abuse,” and “child pornography.” The distinction between
these terms, if any, is immaterial to the resolution of this appeal, and we
will use the term child pornography in the interest of consistency.
No. 20-3291 3
that subpoena, as it sought cumulative testimony to material
already in the record. The record included a written declara-
tion from Microsoft and Facebook and live testimony from an
executive at NCMEC, which administers the federal reporting
system. On the merits, the district court did not err in its con-
clusion that Facebook did not act as a government agent in
this case. Thus, we affirm.
I
Bebris sent messages to a woman via Facebook Messenger,
a user-to-user private messaging service that is part of Face-
book. PhotoDNA, a program developed by Microsoft and im-
plemented in Facebook Messenger, flagged some of those
messages, which contained images that matched known child
pornography. PhotoDNA is an “image-mapping” technology
that uses a mathematical algorithm to create a unique “hash
value” based on the digital essence of a photo. The hash value
of images uploaded and sent via Facebook Messenger are au-
tomatically compared to a database of the hash values of
known child pornography, which is compiled and main-
tained by NCMEC. If the program returns a presumptive hit
for child pornography, Facebook employees review the
flagged images and then send the images and certain user in-
formation to NCMEC as “CyberTipline Reports,” or
“CyberTips,” in accordance with 18 U.S.C. § 2258A.
In Bebris’s case, three images were flagged as suspected
child pornography and forwarded to NCMEC, which ulti-
mately forwarded the information to state law enforcement
agencies in Wisconsin. The Wisconsin authorities then sub-
poenaed internet data and identified the IP address that up-
loaded the photos as belonging to Bebris. They obtained a
state search warrant and executed it at Bebris’s residence,
4 No. 20-3291
where they seized numerous electronic devices, including a
computer that contained numerous child pornography files.
Bebris was subsequently charged in federal court with
possessing and distributing child pornography in violation of
18 U.S.C. §§ 2252A(a)(2)(A) and (a)(5)(B). He filed a motion to
suppress evidence, arguing that Facebook (and NCMEC and
law enforcement) violated his Fourth Amendment rights by
searching his Facebook messages without a warrant. In sup-
port of that theory, Bebris argued that Facebook assumed the
role of a government agent by monitoring for and reporting
suspected child pornography to NCMEC. Bebris requested an
evidentiary hearing and sought to elicit testimony relating to
Facebook’s cooperation with NCMEC and the government.
Bebris additionally sought to elicit testimony from Facebook
regarding whether he had an expectation of privacy over his
Facebook messages and the scope of Facebook’s search of his
messages. Bebris argued in the alternative that even if Face-
book did not act as a government agent, law enforcement im-
permissibly expanded Facebook’s private search when it
viewed images not previously opened by Facebook.2
The district court set the matter for an evidentiary hearing,
and Bebris subpoenaed Microsoft, NCMEC, and Facebook,
seeking testimony from each pursuant to Federal Rule of
Criminal Procedure 17(a). Microsoft agreed to set forth certain
facts in a stipulation. NCMEC agreed to make an executive
available for the hearing.
2 Bebris has not pressed this argument on appeal, and it is thus waived.
No. 20-3291 5
The Facebook subpoena, dated October 14, 2019, re-
quested testimony from the “Person Most Knowledgeable of”
three topics:
(1) Facebook’s use of PhotoDNA, “including
but not limited to Facebook’s agreement to
sublicense the software, Facebook’s policies
and procedures in utilizing the software, in-
formation stored by Facebook which was
discovered by use of the software, and Face-
book’s policies and procedures in reporting
any content discovered by the software,”
(2) “ongoing PhotoDNA training offered by Fa-
cebook and/or an outside entity,” and
(3) “cooperation” among Facebook, Microsoft,
or NCMEC.
R. 41, Ex. 2. Following the receipt of the subpoena, Bebris’s
attorney and Facebook’s attorneys attempted to agree on facts
Facebook would stipulate to, but no agreement was reached.
On November 27, 2019, Facebook filed a declaration from its
Project Manager for Safety on the Community Operations
team, Michael Francis Xavier Gillin, II. Facebook also filed a
motion to quash the subpoena that same day, arguing that
Gillin’s declaration obviated the need for live testimony,
which would be duplicative of those facts in the sworn decla-
ration. At the December 3, 2019 evidentiary hearing, Face-
book’s attorneys appeared in the district court. The district
court stated that it would set a briefing schedule for a re-
sponse to the motion to quash and, in the event that Bebris
prevailed on the motion, would continue the evidentiary
hearing with Facebook’s testimony at a later date. The
6 No. 20-3291
government stated that it viewed the declaration as sufficient
for the court to rule on the motion to suppress without addi-
tional live testimony.
The evidentiary hearing proceeded with testimony from
NCMEC Vice President John Shehan, who discussed (1) Pho-
toDNA and NCMEC’s hash value database; (2) CyberTipline
Reports; (3) oversight and funding of NCMEC by the United
States government; and (4) NCMEC’s partnership with Face-
book. After the testimony concluded, the district court heard
additional argument from Bebris, the government, and Face-
book on the motion to quash. An attorney from Facebook
stated that the company would be willing to supply a supple-
mental declaration addressing concerns raised by Bebris’s
counsel, specifically relating to the level of cooperation and
training between NCMEC and Facebook and whether some-
one at Facebook had viewed the images before sending a re-
port to NCMEC. In his supplemental brief, Bebris requested
another evidentiary hearing and listed more than 100 ques-
tions he wanted to ask a Facebook witness at that hearing. In
its supplemental response, Facebook argued that live testi-
mony was not needed, and it provided a supplemental decla-
ration from the same declarant, Gillin.
Gillin’s declarations 3 stated, in relevant part, that:
(1) Facebook has an independent business purpose in
keeping its platform safe and free from harmful con-
tent and conduct, including content that sexually
3 Gillin’s second declaration contained only minor changes from the first,
clarifying the responses related to the training Facebook received from
NCMEC and stating that a Facebook employee viewed flagged images be-
fore submitting them to NCMEC.
No. 20-3291 7
exploits children. As [its] Community Standards ex-
plain, “We do not allow content that sexually exploits
or endangers children. When we become aware of ap-
parent child exploitation, we report it to the National
Center for Missing and Exploited Children (NCMEC),
in compliance with applicable law.” Our community
Standards regarding Child Nudity and Sexual Exploi-
tation of Children are publicly available on our web-
site here: https://www.facebook.com/commu-
nitystandards/child_nudity_sexual_exploitation.
(2) Facebook identifies content and conduct that might
violate its Community Standards in various ways.
[The relevant CyberTipline Reports] were based on
images Facebook identified using a software called
PhotoDNA, which Facebook did not create but in-
stead licensed directly from Microsoft, another pri-
vate company. Facebook uses PhotoDNA software to
identify potential child exploitation content, as well as
to identify other types of violations of its Terms of Ser-
vice or Community Standards. Information about
how PhotoDNA works is publicly available, for exam-
ple, at https://www.microsoft.com/en-us/photodna.
Facebook did not license the software from NCMEC
or anyone other than Microsoft directly.
(3) Facebook does not receive training from NCMEC re-
garding the use or operation of PhotoDNA or its pro-
cesses for reporting to CyberTipline, meaning Face-
book does not receive training from NCMEC on Face-
book’s own internal processes, including Facebook’s
use of PhotoDNA or Facebook’s process of determin-
ing the content of its CyberTipline reports. NCMEC
8 No. 20-3291
may train or educate service providers, including Fa-
cebook, on the technical specifications and operation
of the CyberTipline.
(4) [Paraphrased:] Gillin reviewed the reports created as-
sociated with this case. The photos instigating each re-
port were viewed by a person at Facebook and sent to
NCMEC.
(5) Although initially identified by PhotoDNA, a person
viewed the images immediately before they were sub-
mitted to NCMEC. This is reflected in the CyberTi-
pline Reports where the reports document “Did re-
porting ESP view the entire contents of uploaded
files?” and the report reflects an answer of “Yes.”
When Facebook responds to this question with an af-
firmative “Yes,” it means that a person viewed the im-
age submitted in the CyberTipline report.
(6) Facebook has no record of receiving legal process
from the Government for the account holders associ-
ated with the accounts reported in [the relevant
CyberTipLine reports]. Prior to receipt of this sub-
poena, other than the initial submission of these two
CyberTipline Reports, Facebook has identified no rec-
ords of communication with NCMEC in this matter.
Similarly, other than its counsel’s communications
with the Government about the defense subpoena, Fa-
cebook has identified no records of communications
with the Government regarding the images or content
of the CyberTipline reports.
R. 53, Ex. A.
No. 20-3291 9
Following supplemental briefing, the district court issued
an order denying Bebris’s motion to suppress and, within that
order, granting Facebook’s motion to quash. The district court
found that Bebris lacked a reasonable expectation of privacy
in his messages because Facebook’s Community Standards
and terms of service warned users that Facebook reports child
pornography if it becomes aware that it is being sent. Sepa-
rately, the district court held that Facebook searched Bebris’s
messages as a private actor and, thus, the search did not im-
plicate the Fourth Amendment. Finally, the district court
found that NCMEC and the Wisconsin law enforcement agen-
cies did not exceed the scope of Facebook’s private search.
Following that ruling, Bebris entered a guilty plea to one
count of distributing child pornography, reserving his right
to challenge the district court’s denial of his motion to sup-
press on appeal. He was sentenced to 60 months in prison fol-
lowed by six years of supervised release.
II
As a general, initial matter, Bebris’s challenge to Face-
book’s search of his messages and his assertion that this
search violated the Fourth Amendment draws from an argu-
ment that has become familiar to federal district and circuit
courts around the country. Bebris’s core theory is that Face-
book’s use of the PhotoDNA technology, along with other
facts he presented or hoped to present (if they existed), con-
verted Facebook into a government agent for Fourth Amend-
ment purposes. Thus, Bebris contends that the evidence re-
covered and transferred as a result of Facebook’s search
should have been suppressed because it was obtained with-
out a warrant. This theory is not novel and has been invoked
in various circumstances involving PhotoDNA or similar
10 No. 20-3291
technology. See United States v. Miller, 982 F.3d 412 (6th Cir.
2020); United States v. Ringland, 966 F.3d 731 (8th Cir. 2020);
United States v. Reddick, 900 F.3d 636 (5th Cir. 2018); United
States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016); United States
v. Stevenson, 727 F.3d 826 (8th Cir. 2013); United States v. Cam-
eron, 699 F.3d 621 (1st Cir. 2012).
Bebris, however, has added a twist to this common argu-
ment. He asserts that he has been deprived of the opportunity
to prove that Facebook acted as a government agent because
the district court quashed his subpoena for live testimony
from a Facebook representative at the evidentiary hearing on
Bebris’s motion to suppress. The district court’s quashing of
the subpoena, he argues, constituted a violation of the Con-
frontation Clause of the Sixth Amendment. In other words,
Bebris argues that the ultimate denial of his motion to sup-
press (in which he claimed Fourth Amendment violations)
was predicated on the district court’s refusal to require testi-
mony from a Facebook representative (which, as he sees it,
violated his Sixth Amendment Confrontation Clause right).
Bebris additionally argues that even if the district court did
not err by quashing the Facebook subpoena, the district court
still erred by denying the motion to suppress on the merits
based on the evidence in the record. Bebris also argues that
the district court erred by finding that he lacked a reasonable
expectation of privacy in his Facebook messages. We address
each argument in turn below.
A
1
Broadly, Bebris’s arguments build from certain founda-
tional assumptions, which we address at the outset. First,
No. 20-3291 11
recall that Facebook—which flagged and viewed the child
pornography Bebris originally sent on its platform—sent a
CyberTip to NCMEC, not directly to the Wisconsin authori-
ties. Bebris hoped to prove that Facebook acted as an agent of
NCMEC when Facebook searched and reviewed suspected
child pornography, which, through an agency chain (law en-
forcement to NCMEC to Facebook), means that Facebook
would be deemed a government agent. The government takes
the position that NCMEC is not a government entity or agent,
but calls this question immaterial. Because we hold below that
the district court did not err in its determination that Face-
book was a private actor in this case and the search was not
later expanded, we agree that this question becomes immate-
rial. So, for purposes of this appeal, we assume that NCMEC
is in fact a governmental entity or agent. See Ackerman, 831
F.3d at 1294–95 (discussing in depth whether NCMEC quali-
fies as a government entity or agent and concluding that it
does). Thus, we proceed under the assumption that if Bebris
could prove that Facebook acted as an agent of NCMEC, that
agency relationship would serve as a basis for governmental
action implicating the Fourth Amendment.
Second, Bebris assumes that the Sixth Amendment’s Con-
frontation Clause is applicable during an evidentiary hearing
on a motion to suppress. This assumption is not supported by
the case law. “The opinions of [the Supreme Court] show that
the right to confrontation is a trial right.” Pennsylvania v.
Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion) (emphasis in
original). This court and other circuit courts have endorsed
the plain meaning of this Ritchie observation. See, e.g., United
States v. Hamilton, 107 F.3d 499, 503 (7th Cir. 1997) (“The Su-
preme Court has interpreted the [Confrontation Clause] to
guarantee a defendant a face-to-face meeting with witnesses
12 No. 20-3291
appearing before the trier of fact.”) (citation omitted); Ebert v.
Gaetz, 610 F.3d 404, 414 (7th Cir. 2010) (“[B]ecause the court
considered the statement at a suppression hearing, not Ebert’s
trial[,] the Confrontation Clause was not implicated.”) (citing
United States v. Harris, 403 U.S. 573, 584 (1971), which noted
that the Confrontation Clause “seems inapposite to … pro-
ceedings under the Fourth Amendment”); United States v.
Thompson, 533 F.3d 964, 969 (8th Cir. 2008) (“[T]he right of
confrontation does not apply to the same extent at pretrial
suppression hearings as it does at trial. [T]he interests at stake
in a suppression hearing are of a lesser magnitude than those
in the criminal trial itself.”) (internal quotations and citations
omitted).
To his credit, Bebris acknowledges in his briefing that “the
Supreme Court has not yet clearly and decisively addressed
whether the right to confrontation applies when a defendant
has waged a challenge” related to the suppression of allegedly
unconstitutionally obtained evidence. Appellant Br. 21. And
Bebris makes substantial arguments for the extension of that
right to an evidentiary hearing on a motion to suppress. 4 But
we do not view our role as creating a new right where our
own (and the most relevant Supreme Court) precedent sug-
gests that no such right exists. With that in mind, we decline
Bebris’s invitation to review the district court’s decision in
quashing the Facebook subpoena under a Confrontation
4We agree with Bebris that the district court’s reliance on Linder v. United
States, 937 F.3d 1087 (7th Cir. 2019), appears to be misplaced, as that case
dealt with somewhat novel and otherwise inapplicable circumstances.
Bebris’s other textual and precedential arguments, which rely on Supreme
Court cases preceding Ritchie, are foreclosed in this case by the later de-
veloped Confrontation Clause doctrine.
No. 20-3291 13
Clause analysis—which would represent a novel holding that
would have far-reaching and potentially unforeseen conse-
quences for every suppression hearing. See United States v.
Marzook, 435 F. Supp. 2d 708, 747–48 (N.D. Ill. 2006) (St. Eve,
J.) (persuasively concluding that the Confrontation Clause
does not apply to pre-trial suppression hearings and noting
that Federal Rule of Evidence 104(a) provides that the rules of
evidence do not bind a court making a determination at a sup-
pression hearing, where hearsay and other evidence that
would be inadmissible at trial may be relied on) (citing, inter
alia, United States v. Raddatz, 447 U.S. 667, 679 (1980)).
The inapplicability of the Confrontation Clause to a sup-
pression hearing does not mean, however, that a defendant
seeking information to show that evidence was illegally ob-
tained is left unprotected. Rather, district courts still must ad-
here to the traditional requirements that attach to their review
of motions to suppress, including, as relevant here, in their
discretionary determinations as to whether to issue or quash
Rule 17 subpoenas. See FED. R. CRIM. P. 17.
2
Turning, then, to the district court’s decision to quash
Bebris’s Rule 17(a) subpoena ad testificandum, we review that
decision for abuse of discretion. United States v. Hamdan, 910
F.3d 351, 356 (7th Cir. 2018). 5 “We will reverse the district
5 Although Rule 17(a), unlike Rule 17(c) (which governs subpoenas duces
tecum), does not explicitly address the quashal or modification of a Rule
17(a) subpoena, courts “routinely have entertained motions seeking such
relief and decided them by reference to comparable principles [to those
governing Rule 17(c) subpoenas].” Stern v. U.S. Dist. Court for Dist. of
Mass., 214 F.3d 4, 17 (1st Cir. 2000).
14 No. 20-3291
court only ‘when no reasonable person could take the view
adopted by the trial court.’” Id. (quoting United States v.
Ozuna, 561 F.3d 728, 738 (7th Cir. 2009)). Generally, Rule 17(a)
subpoenas may issue where a defendant seeks testimony that
is relevant and material to the issue being litigated. Stern v.
U.S. Dist. Ct. for Dist. of Mass., 214 F.3d 4, 17 (1st Cir. 2000).
Where the sought testimony is cumulative or immaterial, a
court does not abuse its discretion by quashing a Rule 17(a)
subpoena. See United States v. Beasley, 479 F.2d 1124, 1128 (5th
Cir. 1973). Moreover, Rule 17 may not be used to conduct a
“fishing expedition.” United States v. Nixon, 418 U.S. 683, 699–
700 (1974) (analyzing Rule 17(c)).
As to the motion to suppress we review the district court’s
legal conclusions de novo and the district court’s factual find-
ings for clear error. United States v. Caira, 833 F.3d 803, 806 (7th
Cir. 2016). Mixed questions of law and fact are reviewed de
novo. United States v. Fiasche, 520 F.3d 694, 697 (7th Cir. 2008).
“We accord special deference to the district court’s credibility
determinations because the resolution of a motion to suppress
is almost always a fact-specific inquiry, and it is the district
court which heard the testimony and observed the witnesses
at the suppression hearing.” United States v. Burnside, 588 F.3d
511, 517 (7th Cir. 2009). To determine whether the district
court abused its discretion in quashing the subpoena in this
case, we must analyze the decision in the context of the un-
derlying substantive legal argument that Bebris advanced in
his motion to suppress.
The first clause of the Fourth Amendment provides that
“[t]he right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and sei-
zures, shall not be violated[.]” U.S. CONST. amend. IV. This
No. 20-3291 15
protection applies against governmental action and is
“wholly inapplicable ‘to a search or seizure, even an unrea-
sonable one, effected by a private individual not acting as an
agent of the Government or with the participation or
knowledge of any governmental official.’” United States v. Ja-
cobsen, 466 U.S. 109, 113–14 (1984) (quoting Walter v. United
States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)).
Where a private individual has discovered or been informed
of a defendant’s private information because the defendant
has revealed it, that defendant’s expectation of privacy in that
information has been frustrated. Id. at 116–17. The controlling
principle, distilled down, is that “the Fourth Amendment
does not prohibit the obtaining of information revealed to a
third party and conveyed by him to Government authorities,
even if the information is revealed on the assumption that it
will be used only for a limited purpose and the confidence
placed in a third party will not be betrayed.” Id. at 117 (inter-
nal quotations and citation omitted). Instead, “[t]he Fourth
Amendment is implicated only if the authorities use infor-
mation with respect to which the expectation of privacy has
not already been frustrated.” Id. In other words, authorities
typically may repeat a private search already conducted by a
third party but may not expand on it—a legal principle that
has been described as the private search doctrine. See Ring-
land, 966 F.3d at 736.
The government may not, however, simply enlist ‘private’
individuals to do its bidding in an attempt to avoid its Fourth
Amendment obligations. An ostensibly private organization
or individual may become a state actor for Fourth Amend-
ment purposes in situations where the actor’s conduct is
“fairly attributable” to the government. Brentwood Acad. v.
Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001); see
16 No. 20-3291
United States v. Koenig, 856 F.2d 843, 849–50 (7th Cir. 1988). The
defendant bears the burden of proving such a relationship.
United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011). To
meet this burden, “a defendant must prove some exercise of
governmental power over the private entity, such that the pri-
vate entity may be said to have acted on behalf of the govern-
ment rather than for its own, private purposes.” Koenig, 856
F.2d at 849. This determination must necessarily be made on
a case-by-case basis, and no rigid formula has been articulated
in this circuit, though two critical factors include (1) whether
the government knew of and acquiesced in the intrusive con-
duct and (2) whether the private party’s conduct was done
with the purpose of assisting law enforcement or to further
his own ends. Id. at 847 (citing United States v. Feffer, 831 F.2d
734, 739–40 (7th Cir. 1987)).
With this framework in mind, we return to the district
court’s decision to quash the Facebook subpoena, which
Bebris claims deprived him of the ability to prove that Face-
book acted as a government agent. In analyzing this issue, the
district court determined that the record before it was suffi-
ciently developed to conclude that Facebook was not a gov-
ernment actor. The district court further found that additional
testimony by a Facebook executive was unnecessary. We
agree.
First, as alluded to earlier, the district court was within its
discretion to rely on the declarations submitted by Gillin be-
cause when determining preliminary questions about the ad-
missibility of evidence, the district court is “not bound by ev-
idence rules, except those on privilege.” FED. R. EVID. 104(a);
United States v. Bolin, 514 F.2d 554, 557 (7th Cir. 1975) (“[I]t is
clear that hearsay evidence is admissible in a hearing on a
No. 20-3291 17
motion to suppress.”). Second, the statements in the Gillin
declarations, which were corroborated by NCMEC Vice Pres-
ident John Shehan’s testimony, addressed the principal fac-
tual considerations relevant to the agency inquiry. Specifi-
cally, Gillin’s declaration revealed that Facebook had not been
directed by the government (or NCMEC) to take any specific
action with respect to Bebris, that Facebook had not been in
contact with the government or NCMEC with respect to
Bebris prior to the discovery of child pornography in Bebris’s
messages, and that Facebook had its own independent busi-
ness purpose in keeping its platform free of child pornogra-
phy. On these first two points, Bebris argues that the district
court erred by relying on the declaration “without any tested
factual support” relating to whether the government com-
pelled Facebook to perform this monitoring on its platform.
In fact, however, NCMEC Vice President Shehan testified that
Facebook’s relationship with NCMEC was “completely vol-
untary.” The district court’s factual findings on this issue
were not clearly erroneous, and additional testimony as to
whether Facebook was compelled (in the face of the undis-
puted evidence properly before the court to the contrary) to
monitor its platforms would have been cumulative.
As to Facebook’s business purpose for monitoring its plat-
form, Bebris argues that the district court erred by simply
crediting Facebook’s conclusory statement that it had an in-
dependent business purpose for monitoring its platform for
child pornography. We disagree. True, Facebook’s declara-
tion stated that it had “an independent business purpose” for
monitoring its platform for child pornography in a conclusory
fashion. But the district court was entitled to determine, given
the record before it, that this statement was sufficient. We note
that the Microsoft stipulation, for example, states that “the
18 No. 20-3291
direct and indirect costs resulting from the presence of such
images can be significant. For example, the presence of such
images can increase the volume of consumer complaints re-
ceived by Microsoft and, potentially, cause substantial harm
to Microsoft’s image and reputation in the marketplace.”
R. 43 at ¶ 4. Thus, the district court’s finding as to Facebook’s
motivation, which was consistent with the common sense
statement in the record provided by Microsoft, was proper.
Several of our sister circuits have recognized that a company
which automatically scans electronic communications on its
platform does “not become a government agent merely be-
cause it had a mutual interest in eradicating child pornogra-
phy from its platform.” Ringland, 966 F.3d at 736. We agree—
drawing from another well-stated opinion—that this sort of
activity is analogous to shopkeepers that have sought to rid
their physical spaces of criminal activity to protect their busi-
nesses. Miller, 982 F.3d at 425; see also Stevenson, 727 F.3d at
830 (“A reporting requirement, standing alone, does not
transform an Internet service provider into a government
agent whenever it chooses to scan files sent on its network for
child pornography.”); Cameron, 699 F.3d at 638 (“[I]t is cer-
tainly the case that combating child pornography is a govern-
ment interest. However, this does not mean that Yahoo! can-
not voluntarily choose to have the same interest.”).
In the end, the district court appropriately relied on the
Facebook declaration which, in conjunction with the NCMEC
testimony, support its conclusion that Facebook was not act-
ing as a government agent when it reviewed messages on its
servers for child pornography and then reported that contra-
band to NCMEC. Because the sought-after live testimony as
to the nature of the cooperation between Facebook and
NCMEC would have been cumulative of Facebook’s
No. 20-3291 19
declaration (which itself was corroborated by NCMEC testi-
mony), the district court did not abuse its discretion in quash-
ing the Facebook subpoena.
Turning to the merits of the motion to suppress, based on
the evidence relied upon, which encompassed an appropriate
universe of material, the district court’s factual findings, in-
cluding that Facebook did not act as government agent in this
case, were proper. Bebris’s additional arguments to the con-
trary are unavailing, including for the reasons discussed
above. As a result, the district court properly denied Bebris’s
motion to suppress.
B
The parties have raised several additional arguments on
appeal. Because we hold that the district court properly
quashed the subpoena and denied the motion to suppress on
the grounds discussed above, we need not reach whether
Bebris had a reasonable expectation of privacy in his Face-
book messages and whether the government actors in this
case would benefit from the good-faith exception.
III
In sum, the district court did not err by quashing the sub-
poena to Facebook, and the district court did not err by deny-
ing the motion to suppress based on its finding that the pri-
vate search doctrine applied.
AFFIRMED