[00:00:00] Speaker 02: 22-30191, United States versus Weber. [00:00:05] Speaker 04: Good morning. [00:00:06] Speaker 04: Good morning, Your Honor. [00:00:07] Speaker 04: Peter Losney appearing on behalf of Mr. Weber. [00:00:10] Speaker 04: May it please the court? [00:00:12] Speaker 04: I have three issues in my brief that I brought up on appeal. [00:00:15] Speaker 04: I'm going to focus mainly on issue one this morning, and that's the suppression issue. [00:00:20] Speaker 04: When the government obtains information by intruding on a citizen's person, a citizen's home, [00:00:27] Speaker 04: or a citizen's papers or effects, when it trespasses on those, that is a search under Jones. [00:00:33] Speaker 04: Also relevant to my argument this morning is an 1877 case, ex parte Jackson, where the Supreme Court held that US mail, even when it's in the position or possession of a third party, bailed to a third party, is still protected by the Fourth Amendment. [00:00:50] Speaker 04: What we have in this case is the modern equivalent to that trespass that Jackson precluded. [00:00:57] Speaker 04: a digital trespass. [00:00:58] Speaker 04: When Detective Hall opened those images, that was a trespass, no different than tearing open an envelope. [00:01:05] Speaker 03: Counsel, Instagram had a duty under the Act to report anything that they found. [00:01:12] Speaker 03: Didn't have a duty to search, but they did have a duty to report. [00:01:16] Speaker 03: Are you contesting the constitutionality of that? [00:01:19] Speaker 03: I am not, Your Honor. [00:01:21] Speaker 03: So you're conceding that the government may require Instagram to report [00:01:27] Speaker 04: Yes, sir. [00:01:28] Speaker 04: Yes, that's not an issue. [00:01:29] Speaker 03: This is a child pornography. [00:01:30] Speaker 04: That's correct. [00:01:31] Speaker 04: And if Instagram reports, as is their right, as their duty to do under the law, what law enforcement has to do is what the Supreme Court said they needed to do in Riley. [00:01:39] Speaker 04: A very simple thing, something the Fourth Amendment also requires. [00:01:42] Speaker 04: Get the warrant. [00:01:44] Speaker 04: I mean, had the government got the warrant in this case, we wouldn't be here. [00:01:47] Speaker 03: And the grounds for getting the warrant would be that Instagram referred this over to the to the NICMEC? [00:01:52] Speaker 04: Yes, Your Honor. [00:01:52] Speaker 03: If you look at the... And that would be sufficient? [00:01:55] Speaker 04: I guess it would depend on the magistrate's determination, your honor, but it could be. [00:01:59] Speaker 04: I mean, that's up to the magistrate, of course, that's reviewing the search warrant application. [00:02:03] Speaker 02: Yes. [00:02:05] Speaker 02: What about the terms of service that your client agreed to on Instagram? [00:02:09] Speaker 04: Terms of service, Your Honor, in my view, are not determinative, especially in the Jones-style trespass case. [00:02:16] Speaker 04: As Justice Gorsuch wrote in his dissent in Carpenter, consenting to give a third-party access to private papers that remain one's property is not the same thing as consenting to a search of those papers by the government. [00:02:28] Speaker 04: And we would look at Instagram's terms of service, and this is at ser681. [00:02:33] Speaker 04: They're very clear that the Instagram user has some property right in that still. [00:02:40] Speaker 04: That's not given up at all. [00:02:41] Speaker 04: 681, Instagram's terms of service. [00:02:45] Speaker 04: We do not claim ownership of your content. [00:02:48] Speaker 04: Nothing is changing about your rights in the content. [00:02:52] Speaker 04: We do not claim ownership of your content. [00:02:55] Speaker 04: The Instagram user keeps a possessor interest, just like the envelope. [00:02:59] Speaker 04: I've bailed it. [00:03:00] Speaker 03: But under the terms of service, he understands that he is [00:03:03] Speaker 03: both sharing this with anybody that he's allowed inside whatever privacy restrictions he's placed, but that Instagram as the owner of the website has access to it. [00:03:14] Speaker 03: And that means that he has a reduced privacy interest in this. [00:03:17] Speaker 04: Certainly could be a reduced privacy interest, but again, under Jones, that's not relevant, Your Honor. [00:03:22] Speaker 02: Well, what do you make of it? [00:03:24] Speaker 02: I mean, you referenced the part about ownership in the terms of service, right? [00:03:28] Speaker 02: But it also says we may share information about misuse [00:03:31] Speaker 02: or harmful content with other Facebook companies or law enforcement. [00:03:35] Speaker 02: So why isn't that essentially a license? [00:03:38] Speaker 02: A license to trespass, if you will. [00:03:41] Speaker 02: Certainly, Your Honor. [00:03:41] Speaker 04: I'd start again with my quote from Justice Gorsuch that simply putting that in the third party is not consent to law enforcement search. [00:03:48] Speaker 02: Even when it says law enforcement? [00:03:50] Speaker 02: Even when the term of service references law enforcement? [00:03:53] Speaker 04: It's not consent to government trespass, Your Honor. [00:03:55] Speaker 04: So one of the areas the Fourth Amendment protects is my home, obviously, all of our homes. [00:04:00] Speaker 04: If I sign up for some service in my home, a cleaning service, for example, and maybe those terms of service say the cleaners can come and look around my home and they're going to report maybe what they find. [00:04:10] Speaker 04: Fair enough. [00:04:10] Speaker 04: If I agree to those, I understand they might go to law enforcement. [00:04:13] Speaker 04: They might take it to a magistrate and get a warrant. [00:04:16] Speaker 04: But I'm not consenting to the government just coming into my house, trespassing into my house. [00:04:21] Speaker 04: And that's the difference. [00:04:22] Speaker 03: That's what- It does have a different feel, because it's not a matter that it would be one thing if Instagram told the NICMC, say, we've identified child pornography over here. [00:04:39] Speaker 03: I'll say conceded, but I won't hold you to that, suggested that that may be enough for the government to go and get a warrant. [00:04:47] Speaker 03: But that's not what's happened here, is Instagram has actually shared the images. [00:04:51] Speaker 03: They've actually sent them over to the NCMEC, and then the NCMEC has simply forwarded them on to appropriate law enforcement. [00:04:58] Speaker 03: So it's not that law enforcement has been informed that your house cleaner found something in your house in plain view that may be suspicious. [00:05:09] Speaker 03: It is that they brought it to them and said, here it is. [00:05:12] Speaker 04: And that might be the private search exception. [00:05:14] Speaker 04: I agree, Your Honor, again, but under the trespass Jones theory, it doesn't carry the day for that reason alone. [00:05:20] Speaker 03: But there's no trespass. [00:05:23] Speaker 03: A copy of the physical property has been given to law enforcement. [00:05:28] Speaker 03: It's in their possession now. [00:05:30] Speaker 03: And it's not your copy. [00:05:33] Speaker 04: I'm going to take two parts on that, Your Honor. [00:05:34] Speaker 04: When it's given to law enforcement, that's when the trespass occurs. [00:05:37] Speaker 04: When the detective gets that in whatever form she gets it in. [00:05:41] Speaker 04: And the hearing, I'll admit that the factual record is a bit deficient on that. [00:05:45] Speaker 04: That's because the government conceded there was a privacy interest [00:05:49] Speaker 04: in the briefing stage, so the factual record leaves a bit to be desired on that question, Your Honor. [00:05:54] Speaker 02: The factual record is deficient in which specific respects, do you think? [00:05:58] Speaker 04: Sorry, Your Honor. [00:05:58] Speaker 04: Yes, in that, you know, where exactly were the images found within this social media? [00:06:03] Speaker 04: And who had access to them? [00:06:06] Speaker 04: To an extent, Your Honor, I would say later at trial, it became pretty clear that these were indirect messages, so not publicly posted, likely between two users, just like an email, just like the envelope in Jackson. [00:06:18] Speaker 03: Well, what do you do with our decision in Rosa now? [00:06:23] Speaker 04: Your honor, I'll confess unfamiliarity with that off the top of my head. [00:06:26] Speaker ?: OK. [00:06:28] Speaker 01: The counsel's Judge Gould, if I may inject a question, please. [00:06:34] Speaker 01: Could you illuminate me as to your view on the interplay between the trespass theory and the Katz theory of reasonable expectation of privacy? [00:06:49] Speaker 01: Do both tests apply conjunctively or can the court look at whether either of the tests is satisfied? [00:07:00] Speaker 04: Yes, Your Honor. [00:07:01] Speaker 04: The answer is yes. [00:07:02] Speaker 04: They do apply at the same time. [00:07:03] Speaker 04: The Supreme Court said that in Byrd in 2018, that the Jones idea was the original understanding of Fourth Amendment violations. [00:07:12] Speaker 04: Katz didn't come about till the 60s. [00:07:15] Speaker 04: And Byrd was very clear, both now apply. [00:07:18] Speaker 04: And that's the holding in Byrd and certainly what Jones said also. [00:07:23] Speaker 01: Thank you. [00:07:24] Speaker 02: I'd like to get your perspective on the good faith exception, because everything we're talking about, we could assume you're right, and then we could then have that issue to deal with. [00:07:32] Speaker 02: Sure. [00:07:33] Speaker 02: Thank you, Your Honor. [00:07:34] Speaker 04: The District Court found in my favor on good faith. [00:07:38] Speaker 04: The Ninth Circuit cases, I did identify what appears to be maybe a difference in opinion between two panels. [00:07:44] Speaker 04: The case the district court relied on, Vasey, found that the good faith did not apply if the constitutional error was made by the officer themselves and not the magistrate. [00:07:56] Speaker 04: Later on, there was a U.S. [00:07:57] Speaker 04: Supreme Court case, Herring, that seemed to go a little bit beyond that, and then two subsequent Ninth Circuit cases, Artis, which the government cites that recognizes [00:08:07] Speaker 04: that maybe it's not just limited to magistrate error. [00:08:09] Speaker 04: And then a second case, Camus, which recognized that but again said that if the initial error is made by the investigating officer, good faith does not apply. [00:08:19] Speaker 04: I'd note too that artist, which is the case the government relies on in that case itself, the ninth said, we'll recognize maybe hearing expands it. [00:08:27] Speaker 04: But an artist, it doesn't apply because the violation was so blatant. [00:08:32] Speaker 04: So my position is Vasey and Camus control. [00:08:35] Speaker 04: Detective Hall's good faith doesn't apply here to the search, Your Honor. [00:08:44] Speaker 04: The court had asked a bit more about the terms of service. [00:08:47] Speaker 04: And I know the government's probably going to speak about that a lot. [00:08:52] Speaker 04: I talked about this in my brief, but whether we're calling them terms of service [00:08:58] Speaker 04: third-party consent, whatever that might be if you're going to interpret terms of service as a type of third-party consent. [00:09:04] Speaker 04: Again, I don't believe it applies in this trespass type Jones argument that I'm making. [00:09:10] Speaker 02: It seems the argument or the rule you want us to accept is when accessing electronic media is a trespass and then any term of service doesn't give law enforcement any right to receive the information from a private company. [00:09:25] Speaker 02: I mean, I don't see much wiggle room in your position there. [00:09:28] Speaker 02: And that may be fine if that's your position, but I just want to see if that's what you're arguing. [00:09:32] Speaker 02: Sure, Aaron. [00:09:32] Speaker 04: I do think terms of service are truly irrelevant to this question of, is there a trespass under Jones? [00:09:38] Speaker 04: It might be under Katz, no question. [00:09:40] Speaker 04: Maybe. [00:09:41] Speaker 04: I mean, some commenters, I quote from Professor Orr's or Kerr's law review article where he argues that terms of service are completely irrelevant. [00:09:49] Speaker 04: They're between a private person and a corporation, not between the citizen and the government. [00:09:54] Speaker 04: And in this cyberspace context, maybe I should have started with this point, Your Honor, that if this court's gonna find that Fourth Amendment rights are controlled. [00:10:04] Speaker 04: by terms of service that everybody scrolls through, and then just presses OK at the end after not reading them. [00:10:11] Speaker 04: If that waives Fourth Amendment rights, then none of us have Fourth Amendment rights. [00:10:14] Speaker 02: Well, this is kind of what I was going to see if you were going to go there, was to say, is there really no term of service that wouldn't be sufficient? [00:10:23] Speaker 02: If you actually had people go through and check boxes, if it was perhaps even more explicit than the one we have here, that if you [00:10:30] Speaker 02: We can make it specific to what your client was accused of. [00:10:34] Speaker 02: If you transmit child pornography on our system, here's what you were agreeing to do. [00:10:38] Speaker 02: We're going to take that information. [00:10:40] Speaker 02: We're going to provide it to law enforcement. [00:10:42] Speaker 02: You're agreeing to that. [00:10:43] Speaker 02: And your position seems to be that that doesn't matter. [00:10:45] Speaker 04: No, Your Honor, provide it all you want. [00:10:48] Speaker 04: It's up to the officer then to go to the court, to the magistrate, and get the warrant. [00:10:52] Speaker 04: Do exactly what really said to do. [00:10:54] Speaker 04: It's a pretty simple way. [00:10:58] Speaker 04: The terms of service in this case too are clear that there's still a property right and maybe that's what if companies want the right to to give all our individual information over under Jones theory maybe they write these differently next time and say it's not your property it's ours but the case we have. [00:11:14] Speaker 03: One of the problems with the theory is that, at least for now, platforms like Instagram are considered private platforms. [00:11:23] Speaker 03: It's a private market. [00:11:24] Speaker 03: And you get to deal with Instagram on its terms. [00:11:29] Speaker 03: And if Instagram says, we're going to share this with law enforcement, I'm not sure why that isn't noticed to you that law enforcement is going to get access, that anything you share on their platform can be shared with law enforcement. [00:11:43] Speaker 04: Your honor, I agree. [00:11:44] Speaker 04: And again, under Katz, maybe that's relevant. [00:11:46] Speaker 04: But even then, let's just for this talking purpose to say that it somehow affects a property argument. [00:11:53] Speaker 04: Law enforcement's involvement at the time you scroll these terms of service and click OK is a future abstraction. [00:12:00] Speaker 04: This is not a knowing, intelligent, voluntary waiver of Fourth Amendment rights. [00:12:05] Speaker 04: that the Supreme Court requires before they're going to find some type of individual consent to search your person on papers or effects. [00:12:13] Speaker 03: What if you were sending something through a private company like, you're sending physical child pornography, so physical material, some kind of a book, something, slides, photos, something, and we're going through a private company like FedEx, and somehow FedEx sort of learned that it was there and took the book to the feds. [00:12:34] Speaker 03: Do they have to go and get a warrant under those circumstances? [00:12:36] Speaker 04: So that's US versus Jacobson, Your Honor. [00:12:38] Speaker 04: I think that follows that general fact pattern where a FedEx package was damaged in shipping, had cocaine inside, government tested it. [00:12:48] Speaker 04: The Supreme Court said that wasn't a search under the private search exception, under Miller versus Smith. [00:12:54] Speaker 04: I think that case would be decided differently today, Your Honor, under Jones. [00:12:57] Speaker 04: I mean, if there's a trespass on that contraband, [00:12:59] Speaker 04: That would be a search under Jones. [00:13:02] Speaker 04: A search to get information. [00:13:04] Speaker 04: I don't think Jacobson comes out the same way. [00:13:05] Speaker 04: Same thing in your hypothetical, Your Honor. [00:13:08] Speaker 03: But in order to prevail, do you have to have us agree that Jacobson would be decided differently today? [00:13:15] Speaker 04: I don't, Your Honor, because again, Jacobson's the private search rubric under Katz. [00:13:20] Speaker 04: And my argument, again, based on Jones, if private search is based on... Do you think Jacobson comes out differently if somebody argues it under Jones? [00:13:27] Speaker 04: I think it could, Your Honor, yes. [00:13:29] Speaker 04: In the sense that the Supreme Court said Jacobson, there was such a de minimis trespass on the cocaine, just testing it chemically after they found it. [00:13:39] Speaker 04: But I think in a Jones scenario where you're actually touching those papers and effects, intruding on them, that is a search under Jones. [00:13:45] Speaker 04: I think it could come out differently, yes. [00:13:50] Speaker 02: Okay, I know you probably wanted to reserve some time for rebuttal. [00:13:52] Speaker 02: Yes, Your Honor. [00:13:53] Speaker 02: We'll have to put three minutes on the clock when you come back up. [00:13:55] Speaker 02: Thank you, Your Honor. [00:14:07] Speaker 00: Good morning. [00:14:08] Speaker 00: May it please the court? [00:14:10] Speaker 00: Carla Painter on behalf of the United States for the District of Montana. [00:14:14] Speaker 00: No court has held there is a Jones trespass on the facts presented in this case, and for good reason. [00:14:21] Speaker 00: To prevail under Jones, Weber must demonstrate three things. [00:14:25] Speaker 00: First, the government. [00:14:28] Speaker 00: Two, physically trespassed. [00:14:30] Speaker 00: And three, on Weber's physical property. [00:14:34] Speaker 00: He has not and cannot establish any of these requirements. [00:14:38] Speaker 00: Judge Bivy, to your point, it was not government action here. [00:14:41] Speaker 00: It was Instagram that found this child pornography and sent it to Nick Mick. [00:14:47] Speaker 00: Mr. Weber's not contesting that transmission, so we simply do not have the first element that the government has actually committed a search here. [00:14:56] Speaker 00: Secondly, we need the physical trespass aspect. [00:14:59] Speaker 00: As we know in Jones, the physical trespass was placing a GPS unit on a vehicle. [00:15:06] Speaker 00: Here we have information that is completely electronically shared through servers, through the internet. [00:15:13] Speaker 00: No physical components. [00:15:15] Speaker 00: And third, we have that it's not constitutionally protected. [00:15:19] Speaker 00: Your honors discussed the terms of service and how that impacted the analysis here. [00:15:24] Speaker 00: I think that that would be far more significant under CATS, but as we know, Mr. Weber has forfeited that argument, and in fact, the district court has determined there was no subjective expectation of privacy here. [00:15:36] Speaker 00: The terms of service are still relevant, however, to that third element. [00:15:41] Speaker 00: Is this a constitutionally protected area? [00:15:45] Speaker 00: something akin to your house, your papers, your private personal effects. [00:15:50] Speaker 00: The terms of service eviscerate that notion. [00:15:54] Speaker 02: So how far does this go? [00:15:55] Speaker 02: Because if I, you know, sign up for Microsoft Outlook and I click some button that I probably don't read and it says Microsoft can read all my emails, is that it? [00:16:06] Speaker 02: Can they then review my emails for evidence of wrongdoing and then transmit that to the United States government for prosecution? [00:16:14] Speaker 00: Your Honor, I think that that is something that can be examined under the Jones Analysis. [00:16:18] Speaker 00: Again, I think it carries more weight under CATS. [00:16:21] Speaker 00: But here, when we're looking at the physical, constitutionally protected area, these are terms that I must agree to in order to use this platform. [00:16:29] Speaker 00: It's also important to notice a distinction between Instagram, a social media platform, and email or mail, where I'm sending something I intend to be private. [00:16:39] Speaker 00: And we know that to another person. [00:16:41] Speaker 02: So that does get into the question of whether Mr. Weber was transmitting these images privately to somebody else or to some broader Instagram group. [00:16:51] Speaker 02: What does the record show on that? [00:16:52] Speaker 00: And Your Honor, as defense counsel stated, it's equivocal. [00:16:56] Speaker 00: It's not really shored up. [00:16:58] Speaker 00: But the district court noted that's because the defendant did not carry his burden. [00:17:02] Speaker 00: Step one, under cats. [00:17:04] Speaker 00: You must prove a subjective expectation of privacy. [00:17:08] Speaker 00: That's on you, Mr. Weber, to tell us if this was supposed to be a private communication. [00:17:12] Speaker 00: But I would note in our brief, I noted at least one of those cyber tips. [00:17:16] Speaker 00: Again, recall there were five, along with five separate accounts. [00:17:20] Speaker 00: The defendant sent child pornography to 29 recipients. [00:17:24] Speaker 00: So I think that undercuts any argument. [00:17:26] Speaker 00: Of course, under CATS, it supports the district court's conclusion. [00:17:29] Speaker 00: CATS did not apply, but further erodes any argument under Jones that this is a constitutionally protected area. [00:17:36] Speaker 02: So what is your position on how far these terms of services go? [00:17:40] Speaker 02: Do you think it applies to the email hypothetical, or do you think it's limited to social media? [00:17:45] Speaker 02: Where do you see this? [00:17:47] Speaker 00: I think this court only needs to decide the case based on the facts before it here, Your Honor. [00:17:52] Speaker 00: But I would note, we're not relying completely on the terms of service themselves. [00:17:56] Speaker 00: It's the fact that the defendant knew exactly what was happening. [00:18:00] Speaker 00: And Detective Hall testified to that. [00:18:03] Speaker 00: You can see that in supplemental excerpts of the record 316 and 317. [00:18:08] Speaker 00: We had five Instagram accounts created over a seven-month period. [00:18:12] Speaker 00: Each time Instagram found the child pornography, it notified the defendant it was disabling the accounts because of that child pornography. [00:18:22] Speaker 00: What did the defendant do? [00:18:23] Speaker 00: He did not go to a different platform. [00:18:26] Speaker 00: He did not go to email. [00:18:27] Speaker 00: He created a new account under a new name. [00:18:30] Speaker 00: He was essentially at war with Instagram. [00:18:33] Speaker 00: So this court does not need to decide if terms of service are dispositive. [00:18:38] Speaker 00: But if it looks at the facts here, there's no way there's an honest argument that this is a constitutionally protected area. [00:18:44] Speaker 02: What does that tell us, the fact that he opened five accounts over seven months? [00:18:49] Speaker 02: I mean, what does that tell us relevant to the terms of service or to his reasonable expectation of privacy or lack of consent or lack of consent? [00:18:58] Speaker 00: Sure. [00:18:59] Speaker 00: Well, it tells us that he knows, not only via the terms of service, but by his interactions with Instagram, that they are making good on those terms of service. [00:19:08] Speaker 00: They are reviewing the content of his accounts, and they're using that to shut him down. [00:19:13] Speaker 00: We have that on five occasions. [00:19:15] Speaker 02: Did they tell him when they shut down the accounts? [00:19:18] Speaker 02: we know what you're doing with this and if you keep doing this we're going to report it to law enforcement or you're taking that as sort of assumed as part of the terms of service. [00:19:26] Speaker 00: I do believe that that can be assumed or inferred from the record but we also know from the defendant's statements recall in our brief we mentioned [00:19:34] Speaker 00: Mr. Weber talking in jest, you know if my attempt to buy porn Shut down my account or shut down the internet Instagram needs to upgrade their their protocols He's essentially making fun of Instagram for taking these actions. [00:19:49] Speaker 00: So again, no expect I'm sorry expectation of privacy No constitutionally protected area here. [00:19:56] Speaker 00: No government action. [00:19:58] Speaker 00: No trespass. [00:19:59] Speaker 00: I want to move on briefly [00:20:01] Speaker 00: Judge Bress, to your Good Faith question, the defense is correct. [00:20:06] Speaker 00: The district court determined Good Faith did not apply here. [00:20:09] Speaker 00: However, the district court was not relying on the proper case law. [00:20:13] Speaker 00: If you'll recall, the district court said Good Faith cannot apply when it is the law enforcement officer's action that prompted the improper search. [00:20:22] Speaker 00: We cited in our response brief the Herring case in which the Supreme Court stated that is not necessarily true if law enforcement officers Commit a blatant constitutional violation or as mr. Weber has argued in his reply Negligence then good faith should not apply, but we know there was no negligence here The defense has not argued that there was in fact negligence here because detective Hall opened the [00:20:51] Speaker 00: content here sent from Instagram after Instagram had represented that it had viewed these images. [00:20:58] Speaker 00: Now keep in mind, this was 14 months before Wilson, before this court determined that no, in order for the third party exception to apply, we need to know affirmatively that this social media platform has viewed those images. [00:21:14] Speaker 00: So we can't expect Detective Hall to be [00:21:17] Speaker 00: able to foresee that change. [00:21:20] Speaker 00: We know in many cases post-Wilson, this court has affirmed such searches on the Good Faith principles, because it wasn't clear then, nor is it clear now, that Detective Hall needed to reach out to Instagram and confirm precisely who viewed those images for the third party exception to apply. [00:21:40] Speaker 00: Good Faith applies and saves these cases. [00:21:43] Speaker 03: How hard would it have been for you to get a warrant? [00:21:48] Speaker 00: Not very, Your Honor, as you've alluded to. [00:21:52] Speaker 00: And I think that plays into. [00:21:54] Speaker 03: And in order to get a warrant, would you have had to have viewed the images and then go and get the warrant? [00:21:59] Speaker 03: Or would it be simply sort of a status question? [00:22:03] Speaker 03: That is, Instagram referred this to the NICMEC. [00:22:05] Speaker 03: NICMEC referred it over to law enforcement. [00:22:08] Speaker 03: That's sufficient. [00:22:10] Speaker 03: We need a warrant. [00:22:11] Speaker 00: Indeed, Judge Bybee, that is our argument as for the probable cause in the warrant absent looking at these particular images. [00:22:19] Speaker 00: As I said, five accounts, five instances of child pornography sent to NCMEC over seven months. [00:22:25] Speaker 00: So this isn't something that may or may not be child pornography, even if we're not sure the surrounding circumstances more than present probable cause. [00:22:36] Speaker 00: And that is, in fact, our argument, no warrant to open [00:22:40] Speaker 00: Those images was required because first of all, there's no search by the government. [00:22:45] Speaker 02: We have the third party Exception and there was probable cause absent What is the more common practice in cases like this where there's a report from Nick make about? [00:22:58] Speaker 02: child pornography. [00:22:59] Speaker 02: Is it typical that the images will just simply get forward to law enforcement who just sort of see them and are able to open them, or will they more typically wait to open those and get the warrant as the defendant argues should have happened here? [00:23:12] Speaker 00: I can't speak to Nick Mick's particular practices in standard practice, Your Honor. [00:23:18] Speaker 00: I'm sorry, I simply do not have the answer to that question. [00:23:22] Speaker 00: So the good faith exception does apply in this case. [00:23:28] Speaker 00: The defense has argued some of these arguments have been waived. [00:23:31] Speaker 00: Of course, we noted in our answering brief this court can affirm on any grounds in the record. [00:23:38] Speaker 00: And if there are no further questions from the court, I'm happy to rest on our briefs. [00:23:45] Speaker 02: Okay. [00:23:45] Speaker 02: Thank you very much. [00:23:46] Speaker 00: Thank you. [00:23:51] Speaker 04: A few points, Your Honors. [00:23:53] Speaker 04: There was absolutely a government trespass here. [00:23:56] Speaker 04: I've never alleged that the government somehow hacked into these Instagram accounts. [00:24:01] Speaker 04: The search happens when Nick Mick sends the images to Detective Hall to review. [00:24:06] Speaker 04: That's exactly what happened in Wilson. [00:24:07] Speaker 04: That's the government intrusion. [00:24:09] Speaker 04: That's the government opening the envelope in Jackson. [00:24:12] Speaker 04: That's where the search occurs. [00:24:14] Speaker 04: That is absolutely government action. [00:24:16] Speaker 03: And your theory is they should have stopped once they got the envelope from Nick Meck, or the email, or whatever it is they got without opening any attachments, and should have sought a warrant without looking at the material? [00:24:27] Speaker 03: Or they can look at the material? [00:24:29] Speaker 04: No, Your Honor. [00:24:31] Speaker 04: My position should be. [00:24:32] Speaker 04: When law enforcement gets that report from NICMEC or from any third party, if they're going to come into my home, for example, what they have to do is take that information, present it to a neutral and detached magistrate, explain their probable cause, and ask for the warrant. [00:24:48] Speaker 03: But I guess my question is, is the probable cause established by the fact that NICMEC sent it to you and I haven't opened the envelope? [00:24:54] Speaker 03: No. [00:24:54] Speaker 03: Or do they have to look at it first? [00:24:56] Speaker 04: No, Your Honor. [00:24:57] Speaker 04: I guess I can't speak to every hypothetical, Your Honor. [00:24:59] Speaker 04: But I think if Nick Mick is sending information, maybe perhaps describes the images. [00:25:02] Speaker 04: And some of these cyber tips I've seen, there's boxes in the cyber tip where Nick Mick can look at the image or perhaps the underlying provider looks at the image and then relays that to Nick Mick that describes what the image might generally be. [00:25:15] Speaker 03: Nick Mick has been held to be a government agency. [00:25:18] Speaker 03: This is government action. [00:25:20] Speaker 03: So isn't there a search once Nick Mick looks at it? [00:25:22] Speaker 04: I think there absolutely could be, Your Honor. [00:25:24] Speaker 03: Again, in this case... And wouldn't that vitiate the warrant, even if the US Attorney's Office got one? [00:25:30] Speaker 04: No, that's Wilson, I believe, Your Honor, that if either NCMEC or the private party looks at it before the investigating agent, that the private search doesn't apply unless the government can show who... Even though NCMEC is a government agency set up for the purposes of forwarding things to law enforcement. [00:25:50] Speaker 04: If it's a government agency, Your Honor, I don't think it really matters the difference between Detective Hall and NICMEC. [00:25:57] Speaker 04: Maybe I'm not following your question. [00:25:58] Speaker 03: I'm sorry. [00:25:59] Speaker 03: I'm just wondering why what you've proposed, which is that the U.S. [00:26:03] Speaker 03: Attorney's Office or the DA has to go and get a warrant once they get something from NICMEC, wouldn't be violated by the fact that NICMEC itself looked at this and NICMED is a government established agency. [00:26:15] Speaker 04: No, Your Honor. [00:26:16] Speaker 04: I think that the answer to that would be, in that situation, I would argue Nick Mick was a government actor. [00:26:21] Speaker 04: And other circuits have held that. [00:26:23] Speaker 04: We haven't. [00:26:23] Speaker 03: So why isn't that a warrant? [00:26:26] Speaker 03: Why wouldn't a warrant be required by Nick Mick to look at this? [00:26:29] Speaker 04: If that were the case, I would agree Nick Mick would need a warrant, Your Honor. [00:26:34] Speaker 03: Correct. [00:26:35] Speaker 03: So there's no way of getting there once Instagram forwards this material. [00:26:40] Speaker 03: The third party reporter comes in and says, we've got evidence of child porn. [00:26:44] Speaker 03: And somebody's got to say, well, we have to go get a warrant before we can look at this. [00:26:48] Speaker 04: Well, they could listen to what the reporter, if a human viewed it first, which was where this case started, by the way, Your Honors. [00:26:53] Speaker 04: But if a human at the social media company looked at it, they could rely on that person's statement as to what they saw to put into a warrant application, just like any other crime. [00:27:06] Speaker 02: Well, we've taken you a little bit over your time, but let me make sure, Judge Bidey, any further questions or Judge Gould? [00:27:11] Speaker 01: I have one question for counsel. [00:27:15] Speaker 01: Before law enforcement could get a warrant, wouldn't they have to look at the images that were transmitted to know what they could put in their warrant? [00:27:30] Speaker 04: Again, I think that's case by case, Your Honor, but I would argue no, not in all cases and certainly not here. [00:27:35] Speaker 04: I mean, the government made an argument that independent source applied here that they did have enough from what Nick Mick had told them. [00:27:42] Speaker 04: So the answer to that is no, Your Honor. [00:27:44] Speaker 04: They don't have to do that. [00:27:45] Speaker 04: It would ultimately be up to the issuing magistrate and the hypothetical warrant, but they could rely on statements from others without having seen the images. [00:27:53] Speaker 04: Thank you, counsel. [00:27:56] Speaker 02: Okay, Mr. Lassie, thank you very much for your argument this morning, and I want to thank opposing counsel for the argument. [00:28:01] Speaker 02: This matter is submitted. [00:28:02] Speaker 02: Thank you, Your Honors.