United States v. Jeremy Stevenson , 727 F.3d 826 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3960
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Jeremy Robert Stevenson,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: June 12, 2013
Filed: August 15, 2013
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Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Jeremy Stevenson entered a conditional guilty plea to two counts of possessing
child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court1
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The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
denied Stevenson’s motion to suppress evidence without a hearing, and quashed a
subpoena that Stevenson had served on AOL, Inc. Stevenson appeals, and we affirm.
I.
AOL is an Internet service provider. In the course of operating its business, the
company identifies certain files that may damage its network with “hash values.” A
hash value is an algorithmic calculation that yields an alphanumeric value for a file.
Among the files to which AOL assigns hash values are those containing child
pornography.
AOL scans files sent through its network with a tool that it calls the Image
Detection and Filtering Process. When the filtering process detects a hash value that
corresponds to a file containing child pornography, it automatically forwards a report
to the National Center for Missing and Exploited Children (“National Center”).
In September 2010, the filtering process detected that one of AOL’s users had
e-mailed images depicting child pornography to a Google e-mail account. The
filtering process triggered an alert to the National Center, and the National Center
passed the tip along to the Iowa Department of Criminal Investigation. Investigators
learned that both the AOL and Google e-mail accounts belonged to Jeremy
Stevenson.
In January 2011, law enforcement officers obtained a warrant to search
Stevenson’s home. After advising Stevenson of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), the officers questioned Stevenson. Stevenson said that he lived
alone and that he used the computers in his house. When asked whether he had any
child pornography on his computers, Stevenson responded, “I hope not.” A forensic
search of Stevenson’s computers and thumb drives yielded four videos and 721
images depicting child pornography.
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A grand jury charged Stevenson with two counts of possessing child
pornography. Stevenson moved to suppress the images discovered by AOL, the
images and videos found in the search of his home, and the statements he made to the
officers during the search. Stevenson argued that his rights under the Fourth
Amendment were violated when AOL scanned his e-mail for child pornography, and
that this violation tainted the subsequent search. Stevenson also served AOL with a
subpoena demanding various documents that he hoped would support his motion to
suppress, and he requested an evidentiary hearing to present whatever documents he
would obtain from AOL.
The district court declined to hold a hearing, denied the motion to suppress, and
quashed the subpoena. The court explained that AOL was a private actor, so it was
not constrained by the Fourth Amendment, and that Stevenson had failed to raise a
contested issue of fact that would require an evidentiary hearing. Stevenson entered
a conditional guilty plea, preserving his right to appeal the district court’s rulings. On
appeal from the denial of a motion to suppress, we review the district court’s findings
of fact for clear error and its legal conclusions de novo. United States v. Anderson,
688 F.3d 339, 343 (8th Cir. 2012).
II.
The Fourth Amendment applies only to state action, so it does not constrain
private parties unless they act as agents or instruments of the government. United
States v. Jacobsen, 466 U.S. 109, 113 (1984). When a statute or regulation compels
a private party to conduct a search, the private party acts as an agent of the
government. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 614 (1989).
Even when a search is not required by law, however, if a statute or regulation so
strongly encourages a private party to conduct a search that the search is not
“primarily the result of private initiative,” then the Fourth Amendment applies. Id.
at 614-15.
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 Stevenson argues that two sections of the United States Code demonstrate that
AOL acted as a government agent when it scanned his e-mail. Title 18, United States
Code Section 2258A(a) requires AOL to report to the National Center any apparent
violation of the child pornography laws that AOL discovers while providing
electronic communication services. 18 U.S.C. § 2258A(a). Section 2258B(a)
immunizes electronic communication service providers from suit in state and federal
court for claims “arising from the performance of the reporting . . . responsibilities”
imposed by § 2258A. Id. at §2258B(a). Although neither provision requires AOL
to scan the e-mails of users, Stevenson contends that the sections combine to make
AOL an agent of the government.
Stevenson relies primarily on Skinner, where the Supreme Court reviewed the
regulatory regime that governed breath and urine tests conducted by railroad
companies on their employees. 489 U.S. at 614. The regulations required the
railroads to conduct tests under certain circumstances, and authorized the companies
to conduct tests if other conditions were met. Id. at 609-11. As far as the railroad
companies were concerned, the authorized tests were optional. Id. at 611. The Court
held that the Fourth Amendment applied to the optional tests as well as the mandatory
tests, because the optional tests were part of a scheme that demonstrated a strong
governmental preference for testing. Id. at 614-16.
The Court noted three features of the regulations that led it to conclude that the
optional tests amounted to state action. First, the regulations “removed all legal
barriers” to the testing: they preempted any collective bargaining agreement that did
not provide for the specified tests, and they prohibited the railroad companies from
negotiating away their right to conduct the tests in the future. Id. at 615. Second, the
regulations provided for specific consequences if an employee refused to submit to
a test that a railroad company chose to conduct. Id. When an employee refused, the
regulations required the railroads to remove that employee from certain duties. Id.
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Finally, the regulations authorized the government to obtain the results of the tests.
Id.
Sections 2258A(a) and 2258B(a) do not resemble the regulations at issue in
Skinner. Neither section authorizes AOL to scan its users’ e-mails. Neither section
clears the “legal barriers” to scanning by preempting private contracts that forbid
scans, or by prohibiting AOL from contracting away its right to scan. And neither
section prescribes consequences for AOL’s users should they refuse to submit to
AOL’s use of the filtering process.
Stevenson points to § 2258B(a)’s grant of immunity, but that section
immunizes AOL only for complying with its reporting obligations if it discovers a
file containing child pornography. Section 2258B(a), like § 2258A(a), is silent
regarding whether or how AOL should scan its users’ e-mail. The only subsection
that bears on scanning makes clear that an electronic communication service provider
is not required to monitor any user or communication, and need not affirmatively seek
facts or circumstances demonstrating a violation that would trigger the reporting
obligation of § 2258A(a). 18 U.S.C. § 2258A(f).
In sum, the only similarity between the statutes that Stevenson cites and the
Skinner regulations is that both include reporting obligations. 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. Accord United States v. Cameron, 699 F.3d 621, 637-38 (1st Cir.
2012); United States v. Richardson, 607 F.3d 357, 366-67 (4th Cir. 2010).
III.
Stevenson next contends that the district court erred by refusing to hold an
evidentiary hearing. He argues that even if AOL was not transformed into a
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government agent by operation of law, an evidentiary hearing was required to
determine whether AOL conducted the particular scan of his e-mail at issue here as
an instrument of the government. A district court must hold an evidentiary hearing
only when the moving papers are sufficiently definite, specific, and detailed to
establish a contested issue of fact. United States v. Mims, 812 F.2d 1068, 1073-74
(8th Cir. 1987). We review the district court’s denial of Stevenson’s request for a
hearing for an abuse of discretion. United States v. Williams, 669 F.3d 903, 905 (8th
Cir. 2012).
Stevenson argues that the government knew of and acquiesced in the search,
and that AOL conducted the scan to assist law enforcement, rather than to advance
its own objectives. Although those are two of the factors we have examined when
evaluating whether a private party acted as a government agent, see United States v.
Smith, 383 F.3d 700, 705 (8th Cir. 2004), Stevenson offered the district court no
reason to believe those factors were present in this case. Stevenson’s motion to
suppress and his brief in support simply stated, without citation, that AOL acted as
a government agent when it scanned his e-mail.
The government, on the other hand, adduced evidence tending to show that
AOL was not acting as an instrument of the government. An affidavit submitted by
AOL’s Director of Investigations and Cyber Security explained that AOL developed
its scanning program for its own purposes, without any prompting or input from the
government. AOL began using the filtering process for business reasons: to detect
files that threaten the operation of AOL’s network, like malware and spam, as well
as files containing what the affidavit describes as “reputational” threats, like images
depicting child pornography. According to the affidavit, AOL operates its file-
scanning program independently of any government program designed to identify
either sex-offenders or images of child pornography, and the government never asked
AOL to scan Stevenson’s e-mail. Stevenson responded to the affidavit with more
unsupported assertions and did not specifically rebut any of the affidavit’s claims.
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We agree with the district court that Stevenson did not demonstrate a contested
issue of fact that warranted a hearing. Where a defendant offers only conclusory
allegations in support of a motion to suppress, and where those allegations are
unsupported by any citation to the record, a district court does not abuse its discretion
by refusing to hold an evidentiary hearing. United States v. Allen, 573 F.3d 42, 52
(1st Cir. 2009); see Mims, 812 F.2d at 1073-74.
Finally, Stevenson says the court should not have quashed the subpoena duces
tecum that he served on AOL. See Fed. R. Crim. P. 17(c). The subpoena is not
available through the district court’s electronic docket, and Stevenson has not
furnished a copy to this court, but portions of the subpoena are described in papers
that were filed with the district court and are available to us. So far as we can tell, the
subpoena sought various agreements between AOL or its subsidiaries and the
National Center, the Department of Justice, and a state attorney general. The
subpoena suggests that these agreements relate to joint efforts by AOL and
governmental actors to limit child pornography on the Internet. The subpoena also
sought information regarding the origin of the database of hash values that AOL uses
in its filtering process.
Rule 17(c) does not provide a means of discovery from the government in
criminal cases. Nixon v. United States, 418 U.S. 683, 698-99 (1974). This court has
said the same about subpoenas directed to third parties, United States v. Hang, 75
F.3d 1275, 1283 (8th Cir. 1996), and Stevenson does not argue for a more permissive
standard. Cf. Nixon, 418 U.S. at 699 n.12; United States v. Tomison, 969 F. Supp.
587, 593 n. 14 (E. D. Cal. 1997). To warrant the issuance of a subpoena under the
rule, a party must request a document with adequate specificity and show that the
requested document is relevant and admissible. Hang, 75 F.3d at 1283; United States
v. Hardy, 224 F.3d 752, 755 (8th Cir. 2000). The relevance and specificity elements
“require more than the title of a document and conjecture as to its contents,” and a
subpoena should not issue based upon a party’s “mere hope” that it will turn up
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favorable evidence. Hang, 75 F.3d at 1283. We review the district court’s decision
to quash a subpoena for abuse of discretion. Id.
The subpoena to AOL did not meet the Nixon standards. Stevenson contends
that the requested documents would have supported his motion to suppress, because
they would have proved that AOL partnered with law enforcement to combat child
pornography. Even assuming such a “partnership” exists, however, AOL’s decision
on its own initiative to ferret out child pornography does not convert the company
into an agent or instrument of the government for Fourth Amendment purposes.
Stevenson does not allege that the agreements sought by the subpoena would reveal
the sort of official regulatory features that led the Court in Skinner, 489 U.S. at 615,
to conclude that searches of railroad employees were not primarily the result of
private initiative. AOL’s voluntary efforts to achieve a goal that it shares with law
enforcement do not, by themselves, transform the company into a government agent.
Smith, 383 F.3d at 705.
Stevenson speculates that the agreements might show that law enforcement
officials asked AOL regularly to conduct certain scans, and argues that such
information would be relevant to his Fourth Amendment claim. But Stevenson does
not identify a specific agreement that supposedly reveals such requests, and he offers
only conjecture about what such a document might contain. Stevenson’s request for
“[d]ocuments identifying the . . . creator and provider” of AOL’s hash value database
was similarly vague, suggesting an effort at exploratory discovery. Indeed, Stevenson
acknowledged in the district court that he sought “an opportunity to discover . . .
evidence with subpoenas” before completing briefing on his motion to suppress. R.
Doc. 20-1, at 1. The subpoena requests, therefore, were not sufficiently specific to
satisfy the rule, and the district court did not abuse its discretion in granting the
motion to quash. See Hang, 75 F.3d at 1283; see also Richardson, 607 F.3d at 368
(holding that a district court properly quashed a subpoena duces tecum to AOL,
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where a defendant sought to use it “as a discovery mechanism to develop his agency
claim.”).
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The judgment of the district court is affirmed.
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