Is a tip to law enforcement from Tumblr.com equivalent to a tip from an anonymous police informant or a tip from an identified citizen informant? The Court of Appeals recently dealt with this issue of first impression.
Samuel Silverstein was charged with 10 counts of felony possession of child pornography. These charges stemmed from 10 videos found on a flash drive during a search of his home.
The videos depicted female children estimated to be between the ages of four and 14 who were engaged in sexual activity. Seven of the videos portrayed sex acts involving a female child and an adult male. Silverstein admitted that the videos were his.
The search of Silverstein’s home was conducted pursuant to a warrant.
The warrant was based on a detective’s affidavit, which explained that his police department had received information from the National Center for Missing and Exploited Children. NCMEC is a national clearinghouse for tips about child pornography received from private companies providing Internet services.
Tumblr.com is such a company. It is a social media website that lets people “make a blog and put whatever they want on it. … Tumblr is 353 million different blogs, filled with literally whatever.”
Tumblr is also an “electronic service provider” and thus required by federal law to monitor for and report suspected child pornography to NCMEC.
In Silverstein’s case, Tumblr reported nine suspected screen images consisting of child pornography and one video to NCMEC. It also provided Silverstein’s account information, specifically the name of his blog, his Tumblr URL, his IP address and his email address.
NCMEC performed a “publicly-available online search” to determine Silverstein’s general geographic location. It then conveyed Tumblr’s report to Silverstein’s local police department, which in turn was able to pinpoint Silverstein’s home address.
In its report, NCMEC identified the submitter as:
The detective’s affidavit containing all this information formed the basis for the search warrant, which was signed by Milwaukee County Circuit Judge Stephanie Rothstein.
Silverstein challenged the basis for the warrant on the grounds that a tip from Tumblr is no more than a tip from an anonymous police informant. As such, it requires police corroboration to establish the informant’s personal reliability. Here, there was none.
Therefore, he argued, the detective’s affidavit lacked probable cause and a warrant should not have been issued.
Milwaukee County Circuit Judge Ellen Brostrom denied the motion. Silverstein then pleaded guilty to three of the 10 counts; the other seven were dismissed and read in, and Silverstein was sentenced. His appeal followed.
Reliability of informants
In its published decision authored by presiding Judge Kitty Brennan, the Court of Appeals looked at the difference between anonymous police informants and identified citizen informants.
When examining whether probable cause exists to support a warrant, a court first considers the “veracity” and “basis of knowledge” of those who supply the hearsay information. But the test is different between anonymous police informants and identified citizen informants.
For anonymous police informants, the test is mostly about personal reliability and police corroboration. The biggest questions concern the informant’s motivation for giving the tip. Commonly, such a tip is given “in exchange for some concession, payment, or simply out of revenge against the subject.”
On the other hand, because courts recognize the importance of citizen informants, they apply a relaxed test of reliability called “‘observational reliability.”
Observational reliability is evaluated by looking at the nature of an informant’s report, an informant’s opportunity to hear and see the matters reported, and the extent to which the report can be verified by independent police investigation.
The court easily rejected Silverstein’s argument that the Tumblr tip was an anonymous tip. First, the name of a person — Mahashraya Sundararaman — was listed on Tumblr as the submitter. Second, Tumblr itself is “a named, traceable entity that is reporting a crime in furtherance of public safety.”
Thus, rather than being an anonymous tip, it was an identified citizen tip requiring only observational reliability.
Since Tumblr is an electronic service provider, it is federally mandated to check for and report suspected child abuse to NCMEC. “We note that courts in other jurisdictions have held that this obligation itself heightens the reliability of the tip.”
In addition, the Tumblr tip included nine screenshots and one video as well as identifying information about Silverstein. All of these facts taken together demonstrate that observational reliability is “well established here.”
The importance of this decision can be inferred from an introductory statement of the court: “This case has a fact pattern common in Internet child pornography cases.”
The analysis is such that, arguably even absent an individual’s name, the tip from Tumblr itself, as an electronic service provider, is equivalent to an identified citizen informant under the case law cited in the opinion. Thus, only a relaxed level of reliability is required when a magistrate is evaluating probable cause for a search warrant.
Accordingly, a tip from an electronic service provider via NCMEC can be a potent tool for law enforcement in combatting the scourge of Internet child pornography.