Abuse of Discretion Suppression of Evidence.

Byline: Derek Hawkins

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...