ISP Not Agent of the Government

US v. Richardson: Richardson, a registered sex offender, was discovered to be in possession of child pornography as part of an investigation initiated when his internet service provider, AOL, tipped investigators that particular email accounts (both traced back to Richardson) had transmitted images of child pornography. Richardson moved to suppress the physical evidence and statements procured as a result of a search warrant executed based on the information from AOL, on two grounds: (1) that AOL was acting as an agent of the Government and its actions violated the Fourth Amendment and (2) that there was not probable cause to believe that child pornography would be found at his home at the time of the search. To seek support on his first point, Richardson sought a Rule 17(c)(2) subpoena against AOL seeking "all records . . . relating to AOL's coordination of efforts" with Government agencies. The district court rejected that request as overly broad and denied Richardson's motion to suppress. He subsequently entered a conditional guilty plea to child pornography charges.

On appeal, the Fourth Circuit affirmed the district court's denial of the motion to suppress. First, the court held that AOL was not acting as an agent for the Government when it scanned Richardson's emails and uncovered child pornography. Specifically, the court rejected Richardson's argument that the Government, by mandating that AOL report images of child pornography it discovers, transformed AOL into a Government agent, even though the actual scans were not done by Government agents or at their request. The statutory scheme in place at the time did not require AOL to actively search for illicit images, only to report those which they found. Second, the court held that the district court properly quashed the subpoena because it was not sufficiently specific in what it sought AOL to turn over. Finally, the court held that the search warrant was obtained sufficiently close in time to the second AOL detection of illicit images from Richardson as to support probable cause to believe he would have child pornography in his possession.