WARNING: Justice Not Served

Fourth Amendment Violations in Relation to Child Sexual Abuse Material

Justice needs to be served. Corrupt systems need to be dismantled. Loopholes need to be identified and closed.

If the measure of civility is the happiness, security, and raising of our children, then we have to do better.

Let’s begin…

What would have been the point of the Fourth Amendment if the government could have instantly rendered it a dead letter by the simple expedient of delegating to agents investigative work it was forbidden from undertaking itself?

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

Does the National Center for Missing and Exploited Children (NCMEC) qualify as a governmental entity or agent?

Are people who abuse children seeing justice? Is the system rigged to set them free?

That is a question that keeps coming up when explicit material of minors, also called CSAM or Child Sexual Abuse Materials, is reported on the internet.

In Trustees of Dartmouth College v. Woodward (1819), a governmental entity was defined as an entity “invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority."

So what does this mean in terms of CSAM, or Child Sexual Abuse Materials, which are found online and the organizations who are set up to detect and assist law enforcement agencies in prosecuting those who create and share them?

That an entity might be incorporated, as National Chapter for Missing and Exploited Children is, doesn’t prevent it from also qualifying as a governmental entity: the dispositive question isn’t one of form but function, turning on what the entity does, not how it is organized.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

So how does the National Chapter for Missing and Exploited Children actually function? Aren't they just a clearinghouse for missing children posters? Or do their functions extend further than that?

The National Chapter for Missing and Exploited Children's law enforcement powers extend well beyond those enjoyed by private citizens — and in this way it seems to mark it as a fair candidate for a governmental entity. The National Chapter for Missing and Exploited Children's two primary authorizing statutes — 18 U.S.C. § 2258A and 42 U.S.C. § 5773(b) — mandate its collaboration with federal (as well as state and local) law enforcement in over a dozen different ways, many of which involve duties and powers conferred on and enjoyed by the National Chapter for Missing and Exploited Children but no other private person.

 For example, the National Chapter for Missing and Exploited Children is statutorily obliged to operate the official national clearinghouse for information about missing and exploited children, to help law enforcement locate and recover missing and exploited children, to “provide forensic technical assistance... to law enforcement” to help identify victims of child exploitation, to track and identify patterns of attempted child abductions for law enforcement purposes, to “provide training . . . to law enforcement agencies in identifying and locating non-compliant sex offenders,” and of course to operate the CyberTipline as a means of combating Internet child sexual exploitation. Responsibilities and rights Congress has extended to the National Chapter for Missing and Exploited Children alone “under Federal law” and done so specifically “to assist or support law enforcement agencies in administration of criminal justice functions.” This special relationship runs both ways, too, for the National Chapter for Missing and Exploited Children is also empowered to call on various federal agencies for unique forms of assistance in aid of its statutory functions.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

Breaking this down, the National Center for Missing and Exploited Children is:

• Statutorily obliged to operate the official national clearinghouse for information about missing and exploited children.

• Helps law enforcement locate and recover missing and exploited children.

• Provides forensic technical assistance to law enforcement.

• Helps identify victims of child exploitation.

• Tracks and identifies patterns of attempted child abductions for law enforcement purposes.

• Provides training to law enforcement agencies in identifying and locating non-compliant sex offenders.

• Operates the CyberTipline as a means of combating Internet child sexual exploitation.

This is the sole tipline allowed to operate within the United States. Special powers and privileges are granted to the National Center for Missing and Exploited Children in order for it to operate this tipline. In other words, they don't get arrested for receiving and viewing CSAM (Child Sexual Abuse Material). Citizens and/or companies who engaged in the same practices would not be afforded the same protections.

Focusing in particular on the National Chapter for Missing and Exploited Children's CyberTipline functions, the functions at issue in this case, illustrates and confirms the special law enforcement duties and powers it enjoys.

First, the National Chapter for Missing and Exploited Children and the National Chapter for Missing and Exploited Children alone is statutorily obliged to maintain an electronic tipline for Internet Service Providers to use to report possible Internet child sexual exploitation violations to the government. Under the statutory scheme, the National Chapter for Missing and Exploited Children is obliged to forward every single report it receives to federal law enforcement agencies and it may make its reports available to state and local law enforcement as well.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

The National Center for Missing and Exploited Children is the only organization allowed to maintain a tipline and report violations to the federal agencies. They are the country's sole source for this service. It has been federally mandated through legislation. No other organization is allowed to assist in this matter.

This may seem odd because you could go to a law enforcement agency to report this type of information. In my experience, you will receive a response that they are not the authority to handle these claims and that any and all reports should be sent through the National Center for Missing and Exploited Children's tipline.

Second, Internet Service Providers (ISPs) must report any known child pornography violations to the National Center for Missing and Exploited Children (NCMEC). Not to any other governmental agency, but again to the National Center for Missing and Exploited Children and the National Center for Missing and Exploited Children alone. Internet Service Providers (ISPs) who fail to comply with this obligation face substantial (and apparently criminal) penalties payable to the federal government.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

This is from an archived version of the Department of Justice's Frequently Asked Questions page regarding Child Exploitation and Obscenity Section (CEOS). This page has since been removed from the Department of Justice's website.

Child Pornography

Q. Are the Internet Service Providers (ISPs) liable under federal law for websites that depict pornography on their servers?

A. 18 U.S.C. § 2258A requires that an ISP notify the National Center for Missing & Exploited Children (NCMEC)´s cyber tipline if it learns of an apparent violation of federal child pornography laws, such as the use of its system to commit a child pornography offense. NCMEC then forwards the report to law enforcement. If the ISP knowingly and willfully fails to report the apparent violation, it is subject to criminal penalties .

Q. What should I do if I come across a website that exhibits child pornography?

A. If you have information that a website may be violating the law you should report it immediately to your local law enforcement agency, the Federal Bureau of Investigation (FBI), or to the National Center for Missing & Exploited Children (NCMEC)’s CyberTipline at www.cybertipline.com.

In short, any Internet Service Provider who fails to report Child Sexual Abuse Material to the National Center for Missing and Exploited Children's tipline is subject to criminal prosecution.

Third, when the National Center for Missing and Exploited Children confirms it has received a report the Internet Service Provider must treat that confirmation as a request to preserve evidence issued by the government itself.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

The Internet Service Provider must treat the material as if it were evidence in a criminal case. The request doesn't come from a law enforcement agency. It comes from the National Center for Missing and Exploited Children.

For those interested in the statues regarding this:

Compare 18 U.S.C. § 2258A(h)(1) (“[T]he notification to an [ISP] . . . by the CyberTipline of receipt of a report . . . shall be treated as a request to preserve, as if such request was made pursuant to section 2703(f).”), with id. § 2703(f)(1) (“A[n ISP] . . . , upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession . . . .”). Failure to comply again opens an ISP to potential civil or criminal sanctions.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

So the question remains, does the National Center for Missing and Exploited Children enjoy certain protections that an average citizen or even an average company does not?

Fourth, in aid of its tipline functions the National Center for Missing and Exploited Children is statutorily authorized to receive contraband (child pornography) knowingly and to review its contents intentionally. Actions that would normally subject private persons to criminal prosecution. But actions that Congress allows the National Center for Missing and Exploited Children to take precisely because of the unique value it provides in the prosecution of child exploitation crimes. Of course, Congress also provides that Internet Service Providers (ISPs) who forward and preserve images of child pornography in accord with the law may not be prosecuted. But this insulates Internet Service Providers (ISPs) only when they do what any private citizen who discovers apparent child pornography might without inviting a real risk of criminal prosecution: pass evidence along to law enforcement and comply with its preservation instructions. All quite unlike the National Center for Missing and Exploited Children, which (again alone) enjoys the right to receive child pornography knowingly and review it intentionally.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

So, can the functions of the National Center for Missing and Exploited Children qualify it to be a government entity or agency? In this court's decision, it can.

Recent Supreme Court decisions fortify our conviction that the National Center for Missing and Exploited Children qualifies as a governmental entity.

Today, the National Center for Missing and Exploited Children is statutorily required to perform over a dozen separate functions. Law enforcement agents participate at varying levels in its daily operations, and government officials enjoy a sizeable presence on its board. As much as 75 percent of its budget (excluding in-kind donations) comes from the federal government.

Federal grantees and state licensees don’t typically enjoy (for example) the statutory authority to receive contraband knowingly, backed by statutes compelling private and public entities to cooperate with them. Neither do they typically enjoy such powers in aid of traditionally public law enforcement functions. Certainly at no point in these proceedings has the National Center for Missing and Exploited Children or the government sought to identify a single federal grantee or state licensee with anything fairly analogous to the sorts of statutory law enforcement powers and duties the National Center for Missing and Exploited Children possesses.

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

Why does it matter?

The Fourth Amendment states that an individual has certain security made against its privacy. No entity can break that privacy.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Constitution of the United States: Fourth Amendment

If the federal government cannot perform an unreasonable search, what makes you think that a private entity should be able to? Or how about a private entity at the federal government's direction?

Even if we are wrong and the National Center for Missing and Exploited Children isn’t a governmental entity, that doesn’t necessarily mean its searches escape the Fourth Amendment’s ambit. After all, since time out of mind the law has prevented agents from exercising powers their principals do not possess and so cannot delegate. That is a rule of law the founders knew, understood, and undoubtedly relied upon when they drafted the Fourth Amendment — for what would have been the point of the Amendment if the government could have instantly rendered it a dead letter by the simple expedient of delegating to agents investigative work it was forbidden from undertaking itself? Indeed, it’s long since accepted that the Amendment’s proscriptions apply not just to governmental entities but also to those who serve as the government’s agents in particular cases. “Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.”

PDF: Opinion given by 10th Circuit Judge Gorusch in United State of America v. Walter E. Ackerman (August 5, 2016)

Now why does it really matter?

Because some cases regarding online material which show explicit material of children, like the court opinion I referenced here, are being overturned due to Constitutional violations. And it is my opinion with the further disclosure of government interference and interaction with Internet Service Providers (ISPs) and Social Media Companies that this number will only grow. As more information is released like the Twitter Files and the recent Facebook files, it will become increasingly obvious that these organizations can be defined as government entities and government agencies. Interaction between government employees and company employees and intent as to employees' actions form part of the foundation for the definition of whether an organization can be classified as a government agency or government entity. Once that line is crossed, Fourth Amendment violations take place.

What good does it do us to catch the criminals if they aren't being convicted? Does it really matter how many arrests are made for child pornography by our government if justice isn't served?

How is it being overturned? Companies develop software, such as PhotoDNA, which uses a technique called hashing.

Hashing can be used to identify known illegal photos, like child sexual abuse material — in the case of PhotoDNA, even if they have been altered. Prior to hashing technology, law enforcement agencies and technology companies were unable to distinguish between already-known images of child sexual abuse from those that were brand new, which slowed the process of detecting the illegal photos and identifying victims.

By creating unique identifying values, or “hashes,” of this imagery, the process of detecting and removing illegal imagery is streamlined.  Companies can now find and remove content quickly and detectives can focus on images that are new and are of children who have not yet been identified.

Thorn: Introduction to Hashing: A Powerful Tool to Detect Child Sex Abuse Imagery Online

Basically what it does is look for already existing images by compressing everything into unique values. When they find a match between values, then the image needs to be inspected by a human in order to see if it is indeed an image depicting child abuse. This is done by the National Center for Missing and Exploited Children through their tipline.

Here's the issue. At no time is a warrant issued for the search. Although they work with several law enforcement agencies, the National Center for Missing and Exploited Children does not have the power to ask for a warrant. On top of that, if an Internet Service Provider (ISP) fails to report the image to the National Center for Missing and Exploited Children, they are committing a federal crime.

Is this just a hamster wheel of justice whereby you are told arrests are being made, justice is being served, and your children are safer tonight only to get thrown out by the courts? Are these statements being made just to make you sleep better at night knowing your country is fighting against an overwhelming problem?

Or is there something more sinister going on?

In FY 2022, the Office of Juvenile Justice and Delinquency Prevention awarded the National Center for Exploited and Missing Children $38.7 million to fund its activities. The center received an additional $6 million through an interagency service agreement between the Office of Juvenile Justice and Delinquency Prevention and the U.S. Secret Service.

• FY 2022 — $44,700,000

• FY 2021 — $36,922,517

• FY 2020 — $35,429,092

Office of Juvenile Justice and Delinquency Prevention: National Center for Missing & Exploited Children

If child trafficking and Child Sexual Abuse Material (CSAM) is an escalating problem, what exactly are we spending our money on? If images of child abuse are a rising problem globally, then is our methods of fighting against this problem effective?

The US hosts more child sexual abuse content online than any other country in the world. The US accounted for 30% of the global total of Child Sexual Abuse Material (CSAM) URLs at the end of March 2022, according to the Internet Watch Foundation, a UK-based organization that works to spot and take down abusive content.

The US hosted 21% of global Child Sexual Abuse Material URLs at the end of 2021, according to data from the foundation’s annual report. But that percentage shot up by nine percentage points during the first three months of 2022. The Internet Watch Foundation found 252,194 URLs containing or advertising Child Sexual Abuse Materialin 2021, a 64% increase from 2020; 89% of them were traced to image hosts, file-storing cyberlockers, and image stores. The figures are drawn from confirmed Child Sexual Abuse Material content detected and traced back to the physical server by the Internet Watch Foundation to determine its geographical location.

MIT Technology Review: The US Now Hosts More Child Sexual Abuse Material Online Than Any Other Country

Or are we just further creating a safe haven for those who would abuse the system and escape justice?

We have to do better.

Author's Notes: In regards to the quotes, I changed acronym's to full names and removed extraneous references to legal statutes. This was to help with readability and flow. The links do reference the actual court opinion for those who would like to look up those statutes.

Further Study and Suggested Reading:

This issue is a complicated one. There have been several court cases where Fourth Amendment rights violations made by a third party caused evidence to be suppressed. With the release of the Twitter Files and now the Facebook Files, we have to ask ourselves if Social Media companies can still be defined as private companies. Or have they stepped over that line through their continued partnership with government agencies, elected officials, and political parties?

The first article I am putting up highlights some of these other court cases. The other links I am providing are to the Twitter Files and Facebook Files.

Ultimately, the final verdict on this complicated topic is yours... and the courts.

The Digital Social Contract: A Lawfare Paper Series
[PDF] Online Service Providers And The Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma

The Twitter Files

Twitter Files Part 1
Introduction to the Twitter Files
Matt Taibbi — December 2, 2022

Twitter Files Part 2
Twitter's Secret Blacklists
Bari Weiss — December 8, 2022

Twitter Files Part 3
The Removal of Donald Trump Part 1
Matt Taibbi — December 9, 2022

Twitter Files Part 4
The Removal of Donald Trump Part 2
Michael Shellenberger — December 10, 2022

Twitter Files Part 5
The Removal of Donald Trump Part 3
Bari Weiss — December 12, 2022

Twitter Files Part 6
Twitter: The FBI Subsidiary
Matt Taibbi — December 16, 2022

Twitter Files Part 7
The FBI and the Hunter Biden Laptop
Michael Shellenberger -- December 19, 2022

Twitter Files Part 8
How Twitter Quietly Aided the Pentagon's Covert Online PsyOp Campaign
Lee Fang — December 20, 2022

Twitter Files Part 9
Twitter and "Other Government Agencies"
Matt Taibbi — December 24, 2022

Twitter Files Part 10
How Twitter Rigged the COVID Debate
David Zweig — December 26, 2022

Twitter Files Part 11
How Twitter Let the Intelligence Community In
Matt Taibbi — January 3, 2023

Twitter Files Part 12
Twitter and the FBI "Belly Button"
Matt Taibbi — January 3, 2023

Twitter Files Part 13
How Scott Gottlieb and a White House Lobbyist Suppressed the Debate on COVID Vaccines
Alex Berenson — January 9, 2023

Twitter Files Part 14
The RussiaGate Lies
Matt Taibbi — January 12, 2023

Twitter Files Part 15
Move Over, Jayson Blair: Twitter Files Expose Next Great Media Fraud
Matt Taibbi — January 27, 2023

Twitter Files Part 16
Comic Interlude: A Media Experiment
Matt Taibbi — February 18, 2023

Twitter Files Part 17
New Knowledge, The Global Engagement Center, and State-Sponsored Blacklists
Matt Taibbi — March 2, 2023

Twitter Files Part 18
Statement to Congress: The Censorship-Industrial Complex
Matt Taibbi — March 9, 2023

Twitter Files Part 19
The Great COVID-19 Lie Machine: Stanford, the Virality Project, and the Censorship of "True Stories"
Matt Taibbi — March 17, 2023

Twitter Files Part 20
The Information Cartel
NetworkAffects — April 25, 2023

Twitter Files Part 21
The Information Cartel
Matt Orfalea — April 25, 2023

The Facebook Files (As of July 28, 2023)

Facebook Files Part 1
Smoking-Gun Docs Prove Facebook Censored Americans Because of Biden White House Pressure
Rep. Jim Jordan —July 27, 2023

Facebook Files Part 2
Facebook Bowed to Biden's White House to Remove Posts
Rep. Jim Jordan — July 28, 2023

NOTE: There are more parts to the Facebook Files that will be coming out in the near future. However, as of this publication data, this is a complete list of the information publicly available so far.