A new Wisconsin Supreme Court opens term with oral argument on novel search issue

By Alexandria Staubach
 
The Wisconsin Supreme Court is back in session, having heard its first oral arguments of the new term on Tuesday.
 
The pair of cases before the court examine privacy under the Fourth Amendment regarding the online world, considering whether materials brought to law enforcement by third-party online platforms require a warrant to be opened.
 
Oral arguments opened for the first time in 30 years without Justice Ann Walsh Bradley. Newly installed Chief Justice Jill Karofsky presided, and Justice Susan Crawford made her debut on the high court bench.
 
The first case involved Snapchat’s sending of a video suspected of containing child sexual abuse material (CSAM) to Wisconsin law enforcement. Snapchat had traced the video to Michael Joseph Gasper’s account.
 
A Waukesha County Sheriff’s Office detective first viewed the material without a warrant. He then obtained a warrant that led to discovery of more CSAM material on Gasper’s phone.
 
Gasper successfully moved to suppress the evidence in Waukesha County Circuit Court. Judge Michael Bohren ruled that Gasper retained a reasonable expectation of privacy in his Snapchat data.
 
Prosecutors successfully appealed Bohren’s ruling. Wisconsin Court of Appeals District 2 concluded that Snapchat’s terms of service notify all users that their accounts are monitored for CSAM material, which, if found, would be turned over to law enforcement.
 
During Tuesday’s oral arguments, Wisconsin Department of Justice attorney Michael Conway argued that an exception to the warrant requirement allowed law enforcement to view the material without a warrant.
 
Conway argued that if the government had a “virtual certainty” that looking at the file would not reveal anything else of significance not conveyed by the private party, its conduct was appropriate and permitted.

Conway said the case differs from instances where law enforcement officers search a cell phone or container.
 
The government didn’t search a phone or a file, he said. Instead, “the government searched a photo that was provided to it by a third party.” “Snapchat didn’t invite law enforcement to open a whole account,” he said.
 
“The cases are a little frustrating and not particularly clear,” said Justice Brian Hagedorn about the relevant case law.
 
Crawford asked whether the state was asking the court to “narrowly authorize the government to conduct additional searches without a warrant when there is a cyber tip for child sexual abuse specifically” and questioned why the court would make such a distinction.
 
The second case heard by the court presented similar questions. The case arose when Google presented the Jefferson County Sheriff’s Office with evidence of CSAM held in a Google Photos account owned by Andres Rauch Sharak. Again, a detective with the sheriff’s office viewed the material without a warrant.
 
In addition to making arguments similar to those made earlier by Gasper, Sharak’s attorney, Bradley Novreske, argued that Google’s monitoring for CSAM amounted to government action because Google would not endeavor to look for the material on its own.
 
“This isn’t voluntary for them,” said Novreske.
 
He argued that the federal government functionally compelled the searches, “indirectly deputizing” online platforms that enjoy immunity for content created by individual users and the privilege of policing themselves.
 
Novreske referred to a group of federal laws known as the “Protect the Children Act.” Those laws do not themselves compel searches, but he argued that they effectively compel online platforms to act like the government in looking for CSAM.
 
“How many courts have said what you’re asking us to say?” Justice Annette Ziegler asked.
 
“No courts have been asked to,” replied Novreske. He acknowledged that whether online platforms are “functionally deputized” to search for illicit material is an issue of first impression nationwide.
 
No one law specifically says that online platforms are required to look for CSAM. In fact, one of the laws encompassed by the Protect the Children Act specifically says that such searches are not mandatory.
 
“I don’t understand how we could disregard a provision that explicitly says searches are not mandated and find that some combination of other provisions or regulations does create such a requirement,” said Crawford.