Wisconsin Supreme Court says state's view of Snapchat video did not violate Fourth Amendment

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.

You can read WJI’s coverage of oral arguments in this case here.

​The Case: State v. Michael Joseph Gasper

Ziegler

Majority: Justice Annette Kingsland Ziegler (24 pages), joined by Chief Justice Jill J. Karofsky and Justices Rebecca Grassl Bradley, Brian K. Hagedorn, and Janet C. Protasiewicz

Concurrences: Ziegler (4 pages); Justice Rebecca Frank Dallet (12 pages), joined in part by Justice Susan M. Crawford; Hagedorn (4 pages), joined by Karofsky and Protasiewicz

Concurring in part and dissenting in part: Crawford (14 pages), joined in part by Dallet

Upshot

The Fourth Amendment serves as a limit on government power. A private search is not a government search. 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. The Fourth Amendment is implicated, however, if the government exceeds the private search. . . .

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 (child sexual abuse material). 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.

Background

(Michael Joseph) Gasper was charged with ten counts of possessing child pornography and nine counts of child exploitation based upon the content on his cell phone. Law enforcement obtained a warrant for his cell phone after the National Center for Missing and Exploited Children (“NCMEC”) forwarded a CyberTipline (a website to receive reports of online child sexual exploitation) report (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.

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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, 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.’” No person at Snapchat viewed the video.

NCMEC also did not view the video, but did confirm that the video was CSAM through a hash match of the uploaded file to visually similar files that were previously viewed and categorized by NCMEC. NCMEC sent a CyberTip and the flagged video to the DOJ. A DOJ analyst opened the video file, without a warrant, to confirm that it contained CSAM. After confirming the video file contained CSAM, DOJ issued an administrative subpoena to the internet service provider to obtain the name and mailing address associated with the account.

The internet service provider responded with the account information which implicated Gasper. DOJ forwarded the CyberTip and attached video to the Waukesha County Sheriff's Office. There, a detective trained in this area opened the video, without a warrant, and also “confirmed that it depicted [CSAM].” Based upon the CyberTip and video content, the detective then applied for, received, and executed a search warrant for Gasper's home and electronic devices. Police discovered ten files on Gasper’s cell phone containing CSAM. Gasper was taken into custody, waived his Miranda rights, and admitted that he had accessed and stored CSAM on his cell phone.

Gasper was charged with ten counts of Possession of Child Pornography, in violation of WIS. STAT. § 948.12 and nine counts of Sexual Exploitation of a Child, in violation of WIS. STAT. § 948.05. Gasper moved to suppress the evidence on the basis that it was an unconstitutional search in violation of the Fourth Amendment to the United States Constitution. He argued that because the government was the first to view the video and did so without a warrant, the search was unconstitutional. He also argued that the evidence recovered from the subsequent search warrant is likewise unconstitutional, being fruit of the initial warrantless, unconstitutional search of the Snapchat video.

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At a hearing on Gasper's motion to suppress, (t)he State submitted into evidence Snapchat’s user agreement and policies and conditions which specifically “banned [CSAM]” and informed its users that Snapchat was actively scanning for CSAM on its platform. Its user agreement and policies and conditions also informed users that Snapchat’s discovery of CSAM will be reported to NCMEC and law enforcement.

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The circuit court granted Gasper’s motion to suppress stating that “[t]here is a legitimate privacy interest in cell phones.”  . . .

The court of appeals reversed the circuit court’s decision and concluded that Gasper did not have a reasonable expectation of privacy. . . .

Guts

The Fourth Amendment to the United States Constitution provides: "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."

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The Fourth Amendment provides “rights against the government” not private parties. Stated differently, the Fourth Amendment applies to only "governmental action[.] [I]t is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual . . . .’” A government agent may “view[] what a private party ha[s] freely made available for his inspection” without offending the Fourth Amendment. This is because a private actor’s earlier search frustrates the owner’s legitimate expectation of privacy. In other words, under the private search doctrine, any expectation of privacy is lost because the private actor’s search abrogates the original expectation. . . .

A private search, when repeated by the government, does not then become a government search, unless that search exceeds the scope of the private search. Herein lies the crux of Gasper’s argument—that the government exceeded Snapchat’s private search when it viewed the video without a warrant. Gasper does not argue that the video itself contained anything other than what was represented—CSAM. He also does not argue that the government searched more than the single, 16-second video Snapchat scanned, flagged, and reported. His argument relies entirely on the fact that no person at Snapchat actually looked at the video, and that because a person in the government was the first to view the video, that viewing exceeded Snapchat’s private search. But, since the State has asserted that the search was a private search, it is the defendant who bears the burden of proving that a government search occurred, to a preponderance of the evidence.

Gasper agrees that Snapchat is a private party. Gasper argues that law enforcement unconstitutionally exceeded Snapchat’s private search because a person in government, not a person at Snapchat, was first to view the video with human eyes. More specifically, Gasper argues that it was unconstitutional for law enforcement to view the video because it “expanded the scope of the computer data scan contained in the CyberTip from NCMEC” and “expanded the scope of Snapchat’s private search.”

Stated differently, Gasper asserts that all of the CSAM evidence should be suppressed because the search violated the Fourth Amendment. He makes much of the fact that no person at Snapchat viewed the video before forwarding it to law enforcement. But, Gasper fails to meet his burden of proving that this was a government search that exceeded the private search. The Fourth Amendment serves as a limit on government power, not a deterrent to private actors, in this case ESPs (electronic service providers) who use technology to protect the integrity of their platforms, and in so doing, find CSAM. Snapchat’s PhotoDNA detected and flagged Gasper’s video as CSAM, and Snapchat reported that video to NCMEC, who then forwarded the CyberTip and video to the DOJ who then forwarded the same to the Waukesha County Sheriff’s Office

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Here, Snapchat scanned, flagged, and reported an “apparent” CSAM video. Of course, law enforcement may examine the exact same video more thoroughly or with a different base of knowledge than a private party so long as there is a virtual certainty that they will not find anything of significance beyond that which the private search revealed. An officer may “learn” more than a lay person who views the same evidence and may see the details of the CSAM, but that alone does not automatically equate to the government exceeding the private search. (Federal courts in two cited prior cases) concluded that by viewing the video, suspected CSAM, law enforcement exceeded the private actor’s search because law enforcement saw the details of the CSAM. Those courts reasoned that viewing the video revealed the “particulars” of the CSAM to law enforcement, and in so doing, the private search was exceeded. The private search doctrine is not solely evaluated from the perspective of what details law enforcement might see when viewing the video. Instead, it is evaluated from the perspective of what the private party’s search revealed and whether there is a virtual certainty that law enforcement will not find anything else of significance beyond that which the private search revealed.

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(L)aw enforcement may receive a tip from any number of sources. The Fourth Amendment does not protect Gasper from a private actor who discovers that CSAM has been uploaded to its platform, discovered through the private actor’s scan, and the private actor forwards that CSAM to the authorities. The government did not conduct a warrantless search of Gasper’s cell phone or his Snapchat account; it merely reviewed the full CyberTip which included the video flagged as “apparent” CSAM. The private search doctrine applies when, such as here, a private actor invites a government agent to recreate the private actor’s search and there is “virtual certainty that nothing else of significance” is in the file, and that inspection “would not tell [the State] anything more than [it] already had been told.” Nothing about this review of a tip gave law enforcement unfettered access to Gasper’s Snapchat account or his cell phone. Viewing the file was not a search that expanded that of Snapchat’s.

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Gasper argues that he has a categorical expectation of privacy in the reported video . . . . (T)he (U.S.) Supreme Court (has) held that warrantless searches of cell phones are presumptively unreasonable. Gasper argues that he had a “’reasonable expectation of privacy’ in the cyberdata uploaded from his cellphone to his Snapchat account” and in the “content extracted” from that account. Gasper posits that because he accessed Snapchat exclusively from his cell phone, this case should be analyzed as if it was a cell phone search, and that he has a reasonable expectation of privacy of his cell phone and the Snapchat account.

Because we conclude that Snapchat performed a private search when it scanned and identified the flagged video as CSAM and the government did not exceed the scope of Snapchat’s private search when it viewed the video, we need not analyze whether Gasper possessed a reasonable expectation of privacy entitling him to Fourth Amendment protection. We also need not determine to what extent, if any, Snapchat’s terms of service agreement influences a reasonable expectation of privacy in a Fourth Amendment analysis.

Ziegler concurrence

I join the opinion that I wrote for the majority and write separately to expound upon this area of the law.

Although we address the Fourth Amendment’s application to Wisconsin’s state law in the majority opinion, we did not detail the federal law implications when it comes to reporting CSAM. Though Snapchat is not required to use any particular technology to identify CSAM, if it finds CSAM, then federal law requires it to report that CSAM to NCMEC. If such a CyberTip is forwarded to NCMEC, then NCMEC must forward the CyberTip to law enforcement for investigation. The stated purpose of these laws is “to reduce . . . and . . . prevent the online sexual exploitation of children.”

Federal law requires Snapchat to report when it becomes aware of “apparent violations of [CSAM].” That is exactly what Snapchat did. Snapchat reported the video and stated that it contained “apparent [CSAM].” Snapchat arrived at this conclusion utilizing its hash-value algorithm—such a system has been deemed reliable, akin to a digital fingerprint, a DNA match, or a VIN number. Snapchat’s algorithm viewed each, individual pixel of the image, compared it to a database filled with known CSAM images, and determined that it contained contraband. Then, that single, 16-second video was removed from Gasper’s account, and Snapchat followed the procedure outlined in federal law. In this case, Snapchat alone decided that this video contained CSAM. Snapchat, as a private actor, followed the letter of the federal law. Thus, federal law supports the process used in this case. Once Snapchat reported the CSAM, the government did not expand the scope of the search. It was Snapchat who frustrated Gasper’s expectation of privacy—not the government.

Snapchat, through its algorithm, used its own resources to search for and identify contraband. Like the Supreme Court in United States v. Jacobsen, other federal appellate courts have also applied the private search doctrine and concluded that there is no expansion of the private search when there is a “virtual” or “substantial” certainty that the government agent’s search will not reveal anything more than what the private party represented. However, in Jacobsen, unlike the case at issue, law enforcement’s search exceeded the search conducted by the Federal Express employees. Law enforcement opened the box, observed the baggies of powder, and tested the substance for cocaine. Although the testing was clearly beyond the employee’s private search, the court concluded that the intrusion was nonetheless de minimis. As such, Jacobsen teaches that virtual certainty does not necessarily mean identical. Once the private search has frustrated an individual’s reasonable expectation of privacy, the Fourth Amendment does not always require that the private search be perfectly replicated by the government.

Quite obviously, law enforcement is not required to avert its eyes from criminal activity. Viewing the provided video allowed law enforcement to confirm or dispel that it contained CSAM, as reported. Here, the government viewed what Snapchat’s private search revealed: one, 16-second CSAM video from Gasper’s account. It viewed what Snapchat provided and nothing more. Foregoing a warrant to view what this private actor provided through its own private search, is not only practical, it is constitutional.

Snapchat followed federal law by reporting the flagged video to NCMEC, and then NCMEC carried out its duties by forwarding the CyberTip to the government. In other words, this “apparent violation” followed congressional safeguards, which exist to reduce and prevent online sexual exploitation of children.

Gasper would require the detective to first obtain a warrant to view the CSAM-video Snapchat provided. But Gasper’s argument assumes Fourth Amendment protection exists here, despite this being a private search. He also assumes that law enforcement would limit its warrant request to the video alone. As the majority opinion explained, the government is not required to obtain a warrant before viewing this private search. And as a practical matter, if law enforcement had probable cause to obtain a warrant to view the video for CSAM, then it likely follows that it would have probable cause to seek a much broader warrant searching Gasper’s entire account, home, and electronic devices. . . . Given that the Fourth Amendment’s touchstone is reasonableness, it is more reasonable for law enforcement to conduct this limited review of a private search before engaging in a far more invasive investigation based on an expansive warrant.

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Lastly, while not dispositive in this case, it is interesting to note that Gasper’s arguments highlight the conflict between who might have competing privacy interests in the CSAM. Wisconsin has long held strong victim rights protection both in the form of legislation and in our constitution. One might opine about the child victim’s privacy interest in a CSAM file. Justice Sotomayor has recognized, “[t]here is little doubt that the possession of images of a child being sexually abused would amount to an intentional invasion of privacy tort—and an extreme one at that.”

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I would note, however, that Gasper’s arguments that a person at Snapchat needed to view the CSAM before law enforcement could, would subject a child victim to even more victimization. The more human eyes that witness the wrongdoing, the more the child is victimized. And, if employees of the ESPs are forced, under Gasper’s logic, to personally view and witness the CSAM video, they too may be victims of secondary trauma. But for now, those considerations will be left for another day.

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Dallet

Dallet concurrence

Now more than ever we live in a digital world. Vast amounts of information are created, stored, and shared using smartphones, computers, and other digital devices. And those devices “are portals to an endless array of online services [and] communities” where we can store our private information or share it with friends and strangers alike, all with the tap of a finger. Now that we “live an online existence that can rival the physical one,” courts must grapple with the difficulties of adapting existing Fourth Amendment rules in order to preserve the delicate balance between privacy rights and the needs of law enforcement.

Unfortunately both the court of appeals and majority fail at that task in this case, weakening our Fourth Amendment rights in the process. The court of appeals did so by concluding that boilerplate terms of service imposed by electronic service providers like Snapchat can limit or even eliminate users’ Fourth Amendment rights online. And although the majority wisely vacates the court of appeals’ published opinion, it does so only summarily. Making matters worse, the majority also misapplies the private-search doctrine, and concludes that no Fourth Amendment violation occurred in this case. I write separately to explain why both of these decisions are wrong, and why the good-faith exception to the exclusionary rule nonetheless applies.

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Dallet first addressed the court of appeals determination that the private terms-of-service agreement between Gasper and Snapchat eliminated any Fourth Amendment protection Gasper had in the video:

Granting a contractual right of access to an otherwise private space in the real world similarly does not eliminate reasonable expectations of privacy, thus authorizing law enforcement to access that space without a warrant. Apartment leases and hotel-rental agreements commonly include terms permitting the apartment owner or manager to access the unit for inspections or maintenance, or allowing hotel management or housekeeping to enter a guest’s room for maintenance or cleaning. Yet in both contexts, courts have made clear that granting such a right of access doesn’t eliminate the renter’s reasonable expectation of privacy and open the space up to warrantless government searches.

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These same principles should apply with equal force in the digital setting of this case. Because breaches of private agreements in the real world do not eliminate renters’ or users’ reasonable expectations of privacy against government intrusion, it is irrelevant that Gasper breached Snapchat’s terms of service when he privately uploaded the video to his account. Snapchat’s contractual right to, for example, delete his account or the video for breaching the terms of service says nothing about whether the government could search the video without a warrant. And the fact that Snapchat’s terms stated it could search Gasper’s account and would report CSAM it found to law enforcement is similarly irrelevant. That is because granting a private party the contractual right to access an otherwise private space doesn’t mean the government can access that same space without first obtaining a warrant. Thus, even though the terms of service put Gasper on notice that Snapchat might turn over his files to the government, “the mere ability of a third-party intermediary to access the contents of a [file] cannot be sufficient to extinguish a reasonable expectation of privacy.”

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Although the majority rightly vacates the court of appeals’ published opinion, unfortunately its decision erodes Fourth Amendment rights in different way. As Justice Crawford’s separate writing correctly explains, Gasper’s Fourth Amendment rights were violated when, without obtaining a warrant, a Wisconsin DOJ analyst viewed for the first time a video privately uploaded to Gasper’s Snapchat account. In concluding otherwise, the majority misapplies the private-search doctrine, holding that it was “virtual[ly] certain[]” that by viewing the video for the first time, the analyst “would not find anything of significance beyond what” was already revealed by Snapchat’s prior private search. But that private search was limited in scope, scanning only the video’s hash value—“a sort of digital fingerprint” for computer files—and identifying it as a match for the hash value of an image or video previously flagged as containing CSAM. The hash match alone, however, “revealed nothing, either to [Snapchat] or those with whom it shared the match, about what in particular the [video] depicted (or even what the [file it matched to] depicted).” And for that reason, the analyst’s actions exceeded the scope of Snapchat’s prior private search.

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When evidence is obtained in violation of the Fourth Amendment, the typical remedy is to exclude evidence obtained through that unlawful search. Nevertheless, the exclusionary rule is not automatic, and should be applied only when doing so would yield “appreciable deterrence.”

To that end, the Supreme Court has applied the “good-faith exception” to the exclusionary rule, which recognizes that when law enforcement’s conduct is less culpable, applying the exclusionary rule is less likely to lead to meaningful deterrence. If law enforcement acts “in objectively reasonable reliance on . . . a facially valid warrant properly issued by a neutral, detached magistrate; an apparently constitutional statute; or a binding appellate precedent,” applying the exclusionary rule is not warranted. By contrast, when law enforcement demonstrates “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights,” the exclusionary rule should apply to deter that misconduct.

Some situations, like the one in this case, fall between those two poles. And when that happens, courts must assess the situation’s unique facts, weighing the costs of suppression against the deterrence benefits of exclusion in light of “the ‘flagrancy of the police misconduct’ at issue.” In other words, applying the good-faith exception requires much more than the broad, legally incorrect, and conclusory statement in Justice Ziegler’s concurrence that “[w]hen police act in good faith, or an area of the law is unsettled, there is no police misconduct to deter.”

Here’s what the good-faith-exception analysis should look like. At the time the DOJ analyst viewed for the first time the video privately uploaded to Gasper’s Snapchat account, the Fifth and Sixth Circuits held that a warrant was not required before doing so under the private-search doctrine. Two state courts reached the same conclusion. The Ninth Circuit disagreed, however, holding that a warrant was required.  According to testimony at the suppression hearing in this case, attorneys at DOJ analyzed this split of authority and concluded that a warrant was not required before law enforcement in Wisconsin opened for the first time a file allegedly containing CSAM that was attached to a CyberTip.

As I have written before, in the face of uncertainty, law enforcement should of course “‘err on the side of constitutional behavior’ and get a warrant.” Had they done so here, years of appellate proceedings could have been avoided at virtually no cost, since such a warrant would have been easy to obtain. Nevertheless, under these circumstances, I would not apply the exclusionary rule. Law enforcement’s actions here were not the kind of “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights” the exclusionary rule is needed to deter. Instead, law enforcement made a reasoned, though mistaken in my view, decision to follow the weight of non-binding authority on an unsettled legal question, as reflected in the decisions of two federal circuits and two state appellate courts. Even though not all instances of law enforcement reliance on non-binding precedent will fall within the good faith exception, this one does.

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Hagedorn

Hagedorn concurrence

Some basic Fourth Amendment principles guide our analysis. The Fourth Amendment generally prohibits a government search without a warrant when that search invades a reasonable expectation of privacy. Searches performed by private actors, however, are not government searches and therefore not subject to Fourth Amendment protections.

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When a private actor conducts a search, the reasonable expectation of privacy has been frustrated. Thus, as long as the subsequent government search does not exceed the scope of the private search, the government has not invaded any additional expectation of privacy. When a search merely replicates what the private actor did, no Fourth Amendment search occurs. But Jacobsen also permits some searches that exceed the scope of the private party search if the additional infringement on the remaining interest in privacy is minimal. Where the residual privacy interest is negligible, Fourth Amendment interests similarly do not justify the need for a warrant.

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One of the complications in this type of case is Jacobsen’s focus on what one might learn from a search, which is rooted in the Supreme Court’s jurisprudence regarding the search of a container. Jacobsen focuses on whether the law enforcement’s subsequent search is “virtually certain” to result in learning more than law enforcement already knew. It is not clear to me that this focus is equally illuminating in digital searches or when the potential criminal activity is more complex. I can imagine all kinds of circumstances where law enforcement is sure to learn more than a private actor even while conducting the exact same search. A private actor suspecting financial fraud, for example, is unlikely to notice all that a trained law enforcement officer would see when replicating the private party’s search. And doctrinally, the private search doctrine rests upon whether the scope of the search has been exceeded, not whether law enforcement notices more than the private actor. For this reason, I’m not sure the emphasis on “virtual certainty” is as helpful in light of the kind of search we are examining here.

The real question from Jacobsen would seem to be whether the defendant’s privacy interest was frustrated. Here, the whole video was searched by Snapchat, even though Snapchat did not have a human watch the video. In my view, the expectation of privacy in the video was frustrated by Snapchat’s digital viewing of the video, which means law enforcement doesn’t exceed the scope of the private search by also viewing the video—albeit in a different manner.

The second way this case can be resolved is by following the analysis in the field test portion of Jacobsen. To the extent this search exceeds the scope of the PhotoDNA hash search performed by Snapchat, we still must ask how much of a remaining expectation of privacy Gasper had in the video after Snapchat’s search. The answer is not much. Gasper had little expectation of privacy remaining in the contents of this 16-second video after its contents had already been searched and it had already been flagged for illegal CSAM. Here, to the extent watching the video is deemed an additional government search by exceeding the scope of Snapchat’s digital search, it isn’t much of one. Any additional invasion of Gasper’s reasonable expectation of privacy in this video was small to non-existent, and I would conclude it was insignificant—just like the field test in Jacobsen.

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Crawford

Crawford partial concurrence and partial dissent
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Although the government’s interests in protecting children from sexual abuse and exploitation and holding perpetrators accountable are unquestionably compelling, those interests do not excuse the government from following the basic commands of the Constitution. Here, the Fourth Amendment required the government to obtain a search warrant before opening and viewing Michael Gasper’s Snapchat file.

Many electronic service providers (ESPs) digitally monitor their platforms for harmful content and voluntarily share suspected child sexual abuse materials (CSAM) with the government, as Snapchat did here. When the State opened and viewed the video file it received from Snapchat, it acquired information beyond what was detected by Snapchat’s digital scan. The State utilized that additional information—a detailed description of the contents of the video—when it applied for a search warrant for Gasper’s home and cell phone. The State should have, and readily could have, obtained a search warrant before viewing the video file it received from Snapchat. It chose not to do so. The State’s deliberate decision to open and view the file without first obtaining a search warrant cannot be excused as good faith. I would affirm the circuit court’s order suppressing the evidence the State obtained by opening and viewing the file, specifically the content of that video. I conclude, however, that the remaining facts gained from the CyberTip and investigation were sufficient to support probable cause for the search warrant of Gasper’s home and devices. I thus agree with the mandate reversing the circuit court’s order suppressing evidence obtained pursuant to the search warrant.

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The majority does not reach the question of whether Gasper had a reasonable expectation of privacy in the video file because it concludes that the State’s opening of the file and viewing the video did not exceed the scope of Snapchat’s “private search,” and thus does not implicate the Fourth Amendment. I disagree with the majority’s conclusion that the State’s actions did not exceed the scope of Snapchat’s digital scan, as discussed below. I would also hold that the court of appeals erred in concluding that Gasper did not have a reasonable expectation of privacy in the video file because his “conduct was obviously unlawful” and contrary to Snapchat’s terms of service. I agree with Justice Dallet that Gasper had a reasonable expectation of privacy in files he placed in his password-protected Snapchat account, and that Snapchat’s specific terms of service did not extinguish that expectation of privacy. . . . 

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Jacobsen held that when the government’s inspection reveals “nothing else of significance” beyond what was disclosed to it by a private party, no legitimate privacy interest protected under the Fourth Amendment is infringed. The government here knew only that Snapchat had flagged the file as “apparent CSAM” after conducting a digital scan. It did not know what specimen of “known CSAM” Snapchat’s scan had determined to digitally match Gasper’s file. Nor did the government have a description of the content of the video. Until government agents opened and viewed the file, the State did not know if the file contained an intact video or if it depicted CSAM as defined by state law. Only by opening and playing the file did the government confirm it contained an intact video that was unequivocally CSAM. The detective’s inclusion of a detailed description of the video in the search warrant affidavit underscores the investigative value of the evidence obtained by opening the file. It is simply not true that “nothing else of significance” was disclosed by viewing the video.

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Unlike the majority, I find the federal cases holding that the government’s conduct exceeds the private search to be persuasive and in alignment with Jacobsen. The digital scans conducted by ESPs provide only a binary determination that a file falls within a category of contraband, and even then, the classification is a tentative one: that a file is potential CSAM. Only the officers’ subsequent viewing of the video confirmed that the file contained intact CSAM and, in this case, disclosed the unambiguously illegal nature of the content under Wisconsin law. 

Moreover, even assuming an ESP’s hash-value scanning is highly reliable and accurate in identifying CSAM, that reliability does not dispense with the Fourth Amendment’s warrant requirement. “[T]he reliability of [an ESP’s] hash matching technology is pertinent to whether probable cause could be shown to obtain a warrant, not to whether the private search doctrine precludes the need for the warrant.” A law enforcement officer may, for example, have highly reliable information about the presence of drugs in a home; but the reliability of that information does not justify a warrantless entry and search. “Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”

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In an era of rapidly-advancing technology, including the deployment of artificial intelligence tools that collect and analyze vast amounts of data, the majority’s application of the private search doctrine creates troubling precedent. This court, in holding that opening the file and viewing the video was no different than Snapchat’s digital scan, sanctions greater government intrusion in reliance on private companies’ technological tools. Condoning warrantless government searches that surpass a commercial entity’s previous intrusion into places in which citizens reasonably expect privacy undermines the Fourth Amendment’s protections against unreasonable searches.

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In this case, the government indisputably did not rely on settled precedent when it inspected Gasper’s file without first obtaining a search warrant. Moreover, it was aware that the federal circuit courts were divided on whether a search warrant is required under similar circumstances. Instead of taking the course of action that would ensure it was acting constitutionally—applying for a search warrant—the government instead chose to risk violating Gasper’s rights. The State’s policy was to open and view all of the files attached to CyberTips without a search warrant, despite knowing full well that the law was unsettled. Applying the exclusionary rule here would serve the purpose of deterring the government’s deliberate choice to evade the warrant requirement. The good-faith exception should not be applied to reward the government’s strategic avoidance of its obligations under the Fourth Amendment.

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ESPs have many reasons for wanting to keep their platforms free of harmful and inappropriate content like CSAM, and many utilize software to monitor and prevent it. However, those efforts do not open the door to warrantless searches by the government of ESP users’ private, password-protected data. By opening and viewing Gasper’s video without a search warrant, the State exceeded the bounds of the ESP’s private search. The State did not do so with the virtual certainty that it would find nothing of significance in the file. Its visual examination of the video not only confirmed that the file contained CSAM, but it revealed specific images that the State described in detail in the search warrant affidavit. Because the State’s decision to forego a search warrant before opening and viewing the video cannot be excused under the good-faith exception, the evidence obtained from the warrantless viewing should have been suppressed. Nevertheless, I would hold that the CSAM found during the execution of the search warrant need not be suppressed because the warrant was supported by sufficient untainted evidence.

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