Fourth Amendment and the Internet: Legal Limits on Digital Searches for Child Sexual Abuse Material (CSAM) [March 24, 2022] [open pdf - 730KB]
From the Document: "Various federal statutes criminalize [hyperlink] the production, distribution, solicitation, and possession of 'child pornography,' defined [hyperlink] in part as 'any visual depiction' of sexually explicit conduct involving a minor. Over time, Congress has sought to augment the enforcement of these provisions and limit the dissemination of such material online in several ways. Among other things, federal law requires [hyperlink] covered interactive computer service (ICS) providers, such as companies like Google and Meta, to report 'apparent violation[s]' of the statutes that involve child pornography to the CyberTipline operated by the National Center for Missing and Exploited Children (NCMEC), a private, nonprofit organization that receives [hyperlink] government funding. NCMEC refers [hyperlink] to the material subject to reporting under the statute as Child Sexual Abuse Material (CSAM), a term it views as 'most accurately reflect[ing] what is depicted-- the sexual abuse and exploitation of children.' NCMEC is required [hyperlink] by federal law to make these provider reports available to law enforcement agencies, and NCMEC receives legal protection [hyperlink] from any claims arising from the performance of its CyberTipline responsibilities and other actions, with certain exceptions. Currently, nothing in federal law requires providers to monitor their services or content for CSAM in the first instance. [...] Although CSAM is both [hyperlink] illegal by statute and unprotected under the First Amendment's Free Speech Clause, identifying and reporting CSAM nonetheless poses policy and legal hurdles. At least one major player in the effort to remove online CSAM, Apple, has faced [hyperlink] backlash from privacy advocates over a reportedly delayed plan to scan iCloud-stored photos on a user's device for CSAM. [...] This Sidebar provides an overview of the Fourth Amendment's application to the existing CSAM reporting regime, including points of divergence in recent federal caselaw that could impact congressional efforts to further encourage private ICS providers to search for and report CSAM or other evidence of criminality."
CRS Legal Sidebar, LSB10713
Congressional Research Service: https://crsreports.congress.gov/