Background
Google scans content in its users’ accounts against a list of known child sexual abuse material (CSAM). In August 2021, the company’s automated systems flagged four files in a Google Photos account associated with a user named “Andreas Rauch.” A Google employee opened and reviewed the files, confirmed they were CSAM, and submitted a CyberTip to the National Center for Missing & Exploited Children (NCMEC). NCMEC forwarded the tip to the Wisconsin Department of Justice, which traced the associated IP address to a dwelling in Jefferson County. A detective there viewed the flagged files without a warrant, then obtained a search warrant for the home and devices. The execution of that warrant turned up additional CSAM on the defendant’s phone, leading to fifteen counts of possession of child pornography.
The defendant moved to suppress, arguing that Google had acted as an instrument or agent of the government when it scanned his account, and that the subsequent warrantless review by the detective was therefore an unconstitutional search. The circuit court denied the motion without an evidentiary hearing. He pled guilty and appealed. The Court of Appeals certified three questions to the Wisconsin Supreme Court: whether the defendant retained a Fourth Amendment reasonable expectation of privacy in the account given the platform’s terms of service; whether Google’s scan and review was a private or government search under State v. Payano-Roman; and whether law enforcement needed a warrant before opening files that Google sent to NCMEC.
The Court’s Holding
The Court (Justice Protasiewicz, for a unanimous Court) held that Google acted as a private actor when it scanned the defendant’s account and when its employee viewed the flagged files. Because Google’s search was private, the Fourth Amendment was not implicated; and because the detective’s later review did not exceed the scope of Google’s private search, no separate Fourth Amendment search occurred. The court did not reach the expectation-of-privacy question.
The applicable test: totality of the circumstances
The Court used Skinner v. Railway Labor Executives’ Association as the framework: whether a private actor functions as an instrument or agent of the government “turns on the degree of the Government’s participation” and must be resolved “in light of all the circumstances.” The Court clarified that the three considerations its earlier Payano-Roman decision listed (police initiation/encouragement/participation; the private actor’s purpose; whether the search was a “joint endeavor”) are factors rather than independent requirements. No single consideration is dispositive.
Application to Google
Two facts drove the result. First, the government was not involved in Google’s scan or the employee’s review — law enforcement entered the picture only after Google submitted the CyberTip. Second, Google had a business reason to look for CSAM on its platform independent of any law-enforcement purpose: its terms of service require users to “comply with applicable laws” and to “maintain a respectful environment for everyone,” and the company’s abuse policies are aimed at keeping the platform usable. Following the Sixth and Eighth Circuits in United States v. Miller and United States v. Ringland, the Court treated Google’s interest in removing illegal material from its service as an independent business purpose that defeats the “instrument or agent” characterization.
Federal statutes do not convert Google into a government actor
The defendant’s most ambitious argument was that a constellation of federal statutes — 18 U.S.C. § 2258A (the CSAM-reporting statute) and 47 U.S.C. § 230 (including § 230(e)(5)’s carve-out for sex-trafficking offenses) — effectively conscripts ESPs into the government’s enforcement apparatus. The Court rejected the argument on each statute:
- Section 2258A: The statute creates a duty to report CSAM that an ESP discovers, but expressly disclaims any requirement to “affirmatively search, screen, or scan for” CSAM. 18 U.S.C. § 2258A(f)(3). That non-search disclaimer is the key textual reason federal circuits and state supreme courts have repeatedly held that § 2258A does not convert ESPs into government agents.
- Section 230(c)(2)(A): The provision shields a provider from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider … considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The Court held that this immunity does not require, reward, or incentivize CSAM scanning — it simply protects voluntary moderation choices when they happen. Following the Ninth Circuit’s recent Children’s Health Defense v. Meta Platforms decision, the Court characterized § 230(c) as “entirely passive” and “fundamentally unlike” the regulations in Skinner that compelled testing of railroad employees.
- Section 230(e)(5): The sex-trafficking carve-out, which removes Section 230 immunity for certain trafficking-related offenses, requires that a defendant actually violate the underlying criminal statute (by directly trafficking or knowingly assisting it) before any liability exception attaches. The defendant did not show that this remote possibility of liability would coerce an ESP into searching for CSAM.
National consensus
The Court emphasized that its holding aligns with a near-unanimous national consensus: federal circuits in the Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits, plus the supreme courts of Minnesota and Vermont, have each held that ESPs that scan their platforms for CSAM are private actors for Fourth Amendment purposes.
The warrant and expectation-of-privacy questions
Because Google’s scan was a private search, the Court applied the private-search doctrine under United States v. Jacobsen: a government search that merely repeats a private search and does not exceed its scope is not a separate Fourth Amendment search. The detective who opened the flagged files after a Google employee had already viewed them did not need a warrant. The Court declined to reach whether the defendant had a reasonable expectation of privacy in the account given Google’s terms of service.
Key Takeaways
- Wisconsin joins the dominant view: ESPs that scan accounts for CSAM are private actors. Defendants challenging the resulting evidence on Fourth Amendment grounds face a stacked deck nationwide.
- The Skinner totality-of-the-circumstances test is the right lens. Lower courts that read Payano-Roman as imposing three rigid requirements were corrected here. The factors are guideposts; the ultimate question is the degree of governmental participation.
- Section 230’s immunity for good-faith moderation does not transform voluntary CSAM scanning into state action. Even read alongside the sex-trafficking exception in § 230(e)(5), the statutory scheme is “entirely passive” — it neither requires nor rewards searching.
- The non-search disclaimer in 18 U.S.C. § 2258A(f)(3) continues to do significant doctrinal work. As long as that disclaimer is in the statute, arguments that the federal CSAM-reporting scheme conscripts ESPs into the Fourth Amendment apparatus will continue to fail.
- The private-search doctrine remains a powerful tool for prosecutors in CSAM cases. Once an ESP employee has viewed the flagged file, law enforcement’s review of the same file — if it does not expand the scope — is not a separate Fourth Amendment search.
Why It Matters
This is the first time Wisconsin’s high court has applied the private-actor doctrine to ESP-initiated CSAM scanning, and it does so in a way that gives prosecutors a clean, predictable suppression-defeating argument when CSAM cases originate from CyberTips. For ESPs, the opinion reinforces a comfortable status quo: voluntarily scanning user content for CSAM in pursuit of independent business interests will not by itself convert the company into a government agent, and Section 230’s good-faith-moderation shield can be invoked without becoming evidence of state action.
The opinion is also a useful artifact for the broader Section 230 conversation. As litigants and commentators continue to press the Supreme Court to reconsider Section 230’s scope — particularly in light of Moody v. NetChoice — Wisconsin’s reading of § 230(c) as “entirely passive” is exactly the framing that defenders of the statute will want in the record.
Source
The Wisconsin Supreme Court’s published opinion is available here: State v. Rauch Sharak — Opinion (February 24, 2026).