Friday, November 23, 2012

First Circuit holds that use of Yahoo!'s CP reports at trial requires author testimony under the Confrontation Clause

In United States v. Cameron, No. 11-1275 (1st Cir. 2012), the First Circuit held that certain reports prepared by Yahoo! and NCMEC as part of a child pornography investigation were testimonial, requiring the defendant to have the opportunity to confront the authors of those reports under the Sixth Amendment's Confrontation Clause. The court also held that Yahoo!'s investigation after an anonymous tip did not make it a government agent under Fourth Amendment law.

The defendant was charged with multiple child pornography crimes after law enforcement learned from Yahoo! that an account with his IP address had been sharing images of child pornography. The images had been reported by another user, and Yahoo! began an investigation which resulted in a report to NCMEC and ultimately ICAC. At trial, the defendant argued that the indictment did not meet the specificity requirement, evidence should be suppressed because Yahoo! was acting as a government agent, and evidence should be suppressed because the government was not planning to call witnesses from Yahoo! and Google which violated his Confrontation Clause rights. Each motion was denied. He was ultimately found guilty and sentenced to 192 months in prison.

On appeal, he argued each of the three above issues again. As to the sufficiency of the indictment, he argued that it was insufficient because it did not identify the specific images for each offense. The court held that a description of the offense, the date of the offense, the description of the images as digital, and the means of transportation was enough to meet the sufficiency requirement.

With the government agent argument, the defendant alleged that Yahoo!'s search of his password-protected account for images of child pornography violated his Fourth Amendment rights and made them government agents. The court, however, found that the government did not instigate or participate in the search nor did it have control over the search, and Yahoo! was therefore not acting as a government agent.

The defendant's Confrontation Clause argument centered upon whether the evidence from Yahoo! and Google were testimonial. If it was testimonial, a witness must be called that the defendant could then cross-examine.

  • They presented data concerning the defendant's connections to his accounts. These records, determined the court, were not testimonial as they "were totally unrelated to any trial or law enforcement purpose." 
  • Also used at trial were reports prepared by Yahoo! concerning their investigation into the report of child pornography. The court found that they were hearsay and testimonial. They were prepared to "prov[e] past events potentially relevant to [a] later criminal prosecution." Thus, the admission without the opportunity to confront violated the defendant's rights.
  • The defendant also argued that CyberTipline Reports from NCMEC were testimonial because the reports were based on information contained in the Yahoo! reports. The government argued they were not statements of NCMEC because they simply forwarded Yahoo!'s report to law enforcement  The court found them to be testimonial.
Because the defendant did not have the opportunity to confront witnesses for the testimonial statements, the court reversed five of the convictions, finding the error not to have been harmless. 

A dissent by Judge Howard argued that the use of the CyberTipline Reports did not violate the Confrontation Clause as the defendant has no right "to cross-examine the person(s) who actually located the stored digital images and created a corresponding archive associated with each user name photo album."


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