State of Wisconsin v. Michael Joseph Gasper

Waukesha, Wisconsin, criminal defense lawyer represented the Defendant charged with possession of child pornography.

¶2 Gasper was charged with ten counts of possessing child
pornography1 and nine counts of child exploitation based upon the
content on his cell phone.2 Law enforcement obtained a warrant for his
cell phone after the National Center for Missing and Exploited Children
(“NCMEC”) forwarded a CyberTipline report3 (which included a single,
flagged, 16-second video) from Snapchat to the Wisconsin Department of
Justice (“DOJ”). No person at Snapchat or NCMEC viewed the contents.
Instead, Snapchat scanned its platform and identified the video file it
flagged as known CSAM using a hash-based scanning program. The
flagged video was first viewed by a person when an employee of the DOJ
did so without a warrant. Then the CyberTip with the flagged video was
forwarded to local law enforcement who also viewed the video without
obtaining a warrant. Gasper seeks to suppress this evidence on the basis
that it was obtained in violation of his Fourth Amendment rights.

STATE v. GASPER
Opinion of the Court
2
court’s order granting defendant Michael Joseph Gasper’s motion to
suppress evidence.
¶2 Gasper was charged with ten counts of possessing child
pornography1 and nine counts of child exploitation based upon the
content on his cell phone.2 Law enforcement obtained a warrant for his
cell phone after the National Center for Missing and Exploited Children
(“NCMEC”) forwarded a CyberTipline report3 (which included a single,
flagged, 16-second video) from Snapchat to the Wisconsin Department of
Justice (“DOJ”). No person at Snapchat or NCMEC viewed the contents.
Instead, Snapchat scanned its platform and identified the video file it
flagged as known CSAM using a hash-based scanning program. The
flagged video was first viewed by a person when an employee of the DOJ
did so without a warrant. Then the CyberTip with the flagged video was
forwarded to local law enforcement who also viewed the video without
obtaining a warrant. Gasper seeks to suppress this evidence on the basis
that it was obtained in violation of his Fourth Amendment rights.
¶3 The circuit court granted Gasper’s motion to suppress all
evidence of CSAM on the basis that there was a warrantless search of his
cell phone which violated the Fourth Amendment to the United States
Constitution under Riley v. California, 573 U.S. 373 (2014), and Carpenter v.
United States, 585 U.S. 296 (2018). The circuit court also determined that
suppression was appropriate because Message-Digest 5 (“MD5”),4 a
traditional hash-value scanning program, is “not secure,” stating “[c]ollision verification is clearly important in the private party search
doctrine. With MD5 specifically at issue in Gasper’s case, it should not be
relied upon.

* * *

STATE v. GASPER
Opinion of the Court
3
“[c]ollision verification is clearly important in the private party search
doctrine. With MD5 specifically at issue in Gasper’s case, it should not be
relied upon.”
¶4 The court of appeals reversed in a published opinion
determining that there was no Fourth Amendment violation because
Gasper did not have a reasonable expectation of privacy. Gasper, 414
Wis. 2d 532, ¶¶15-16. The court of appeals concluded that even if Gasper
had a subjective expectation of privacy, his “obviously unlawful” conduct
violated Snapchat’s terms of service and any subjective expectation that he
had was “objectively unreasonable given Snapchat's policies regarding
sexual content in general and sexually explicit content involving children
in particular.” Id., ¶22. The court of appeals concluded that no Fourth
Amendment search occurred. Id., ¶¶1, 29.
¶5 The Fourth Amendment serves as a limit on government
power. See Camara v. Mun. Ct. of City & Cnty. of San Francisco, 387 U.S. 523,
528 (1967). (“The basic purpose of this Amendment, as recognized in
countless decisions of this Court, is to safeguard the privacy and security
of individuals against arbitrary invasions by government officials.”);
Carpenter, 585 U.S. at 305 (explaining that the Fourth Amendment places
hurdles “in the way of a too permeating police surveillance”). A private
search is not a government search. United States v. Ginglen, 467 F.3d 1071,
1074 (7th Cir. 2006). The Fourth Amendment is inapplicable to a search
which has been completed by a private party as that search frustrates an
individual’s expectation of privacy. United States v. Jacobsen, 466 U.S. 109,
117 (1984). The Fourth Amendment is implicated, however, if the
government exceeds the private search. Id. at 115–22. Gasper does not
argue that the government viewed more than the one video provided, nor
does he argue that anything else of significance was in the video. Gasper
relies entirely on the argument that the government exceeded Snapchat’s
private search because a person in the government was the first to open
and view the video, and did so without a warrant.

* * *

¶7 On January 13, 2023, Snapchat reported that it found CSAM
and submitted a single, flagged, 16-second video to NCMEC. Snapchat’s
hash-based scanning program, Microsoft’s PhotoDNA,7 had detected and
flagged a CSAM video that had been uploaded to Snapchat’s servers from
Gasper's account. PhotoDNA “scans files to determine if they are copies of
known and reported [CSAM] based on their ‘hash values.’”8 Gasper, 414
Wis. 2d 532, ¶2. No person at Snapchat viewed the video.

STATE v. GASPER
Opinion of the Court
24
IV. CONCLUSION
¶51 The Fourth Amendment serves as a limit on government
power. See Camara, 387 U.S. at 528 (“The basic purpose of this
Amendment, as recognized in countless decisions of this Court, is to
safeguard the privacy and security of individuals against arbitrary
invasions by government officials.”); Carpenter, 585 U.S. at 305 (explaining
that the Fourth Amendment places hurdles “in the way of a too
permeating police surveillance”). A private search is not a government
search. Ginglen, 467 F.3d at 1074. The Fourth Amendment is inapplicable
to a search which has been completed by a private party as that search
frustrates an individual’s expectation of privacy. Jacobsen, 466 U.S. at 117.
The Fourth Amendment is implicated, however, if the government
exceeds the private search. Id. at 115–22. Gasper does not argue that the
government viewed more than the one video provided, nor does he argue
that anything else of significance was in the video. Gasper relies entirely
on the argument that the government exceeded Snapchat’s private search
because a person in the government was the first to open and view the
video, and did so without a warrant.
¶52 We conclude that the private search doctrine applies. It is
undisputed that Snapchat performed a private search when it scanned
and flagged the single, 16-second video as CSAM. The government did
not exceed the scope of Snapchat’s search when it viewed the video
because any expectation of privacy Gasper may have had in the video was
frustrated by the private search, and there was virtual certainty that law
enforcement would not find anything of significance beyond what the
private search revealed. As a result, the Fourth Amendment is not
implicated. Accordingly, we affirm the court of appeals and remand to the
circuit court for further proceedings consistent with this opinion.
By the Court.—The decision of the court of appeals is affirmed, and
this cause is remanded to the circuit court for further proceedings
consistent with this opinion.