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Abuse of Discretion – Suppression of Evidence

By: Derek Hawkins//September 21, 2021//

Abuse of Discretion – Suppression of Evidence

By: Derek Hawkins//September 21, 2021//

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7th Circuit Court of Appeals

Case Name: United States of America v. Alexander Bebris

Case No.: 20-3291

Officials: SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit Judges.

Focus: Abuse of Discretion – Suppression of Evidence

Alexander Bebris sent child pornography over Facebook’s private user-to-user messaging system, Facebook Messenger, in 2018. Bebris’s conduct was initially discovered and reported by Facebook, which licenses a “hashing” or (in overly simplified layman’s terms) image-recognition technology developed by Microsoft called PhotoDNA. PhotoDNA provides the capability to scan images uploaded onto a company’s platform and compares the “hash” (or essence) of a photo with a database of known images of child pornography. Thus, through that technology, three of Bebris’s messages were flagged by PhotoDNA. Facebook employees reviewed the flagged images and reported them to the CyberTipline of the National Center for Missing and Exploited Children (“NCMEC”), as required by 18 U.S.C. § 2258A(a). NCMEC then reported the images to Wisconsin law enforcement officials, who eventually obtained a warrant and searched Bebris’s residence, where they found a computer containing numerous child pornography files. Bebris was charged federally with possessing and distributing child pornography.

Bebris argued before the district court that the evidence against him should be suppressed, specifically contending that Facebook took on the role of a government agent (subject to Fourth Amendment requirements) by monitoring its platform for child pornography and reporting that content. On appeal, Bebris reprises this argument but primarily contends that he was deprived of the opportunity to prove that Facebook acted as a government agent because the district court denied his Federal Rule of Criminal Procedure 17(a) subpoena seeking pre-trial testimony from a Facebook employee with knowledge of Facebook’s use of PhotoDNA. The district court, however, properly exercised its discretion in quashing that subpoena, as it sought cumulative testimony to material already in the record. The record included a written declaration from Microsoft and Facebook and live testimony from an executive at NCMEC, which administers the federal reporting system. On the merits, the district court did not err in its conclusion that Facebook did not act as a government agent in this case. Thus, we affirm.

Affirmed

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Derek A Hawkins is Corporate Counsel, at Salesforce.

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