SCOW holds that ESP was not acting as government agent when it scanned files for CSAM
State v. Andreas W. Rauch-Sharak, 2026 WI 4, 2/24/26, on certification from the court of appeals; case activity
SCOW holds that Google’s search of Rauch-Sharak’s files was a private search, slightly clarifies that legal test, and affirms.
(See our prior posts here and here).
Google scanned images in Rauch-Sharak’s account searching for “for files that match a list of known CSAM.” (¶4). It found four files, flagged them as suspected CSAM, and forwarded them along to NCMEC. (Id.). NCMEC then forwarded them to the Wisconsin DOJ, which was able to link them to a specified address in Jefferson County using IP records. (¶5). At that point, the tip was forward to local police, who viewed the files without a warrant and, based on that review, obtained a search warrant for Rauch-Sharak’s home and devices. (Id.). After police discovered CSAM in his possession and charged him with possession of child pornography, Rauch-Sharak filed a motion to suppress, which was denied. (¶7). COA ultimately certified the case and asked for resolution of three questions:
1. Whether a person who holds an electronic account with an ESP retains a reasonable expectation of privacy, as to the government, in files that the ESP obtains from the account, despite terms of service that provide that the ESP will scan the account for illegal content and may report such content to law enforcement.
2. Whether an ESP’s scan and review of files in a person’s electronic account constitute a private search or a government search under State v. Payano-Roman, 2006 WI 47, 290 Wis. 2d 380, 714 N.W.2d 548.
3. Whether a law enforcement officer is required to obtain a warrant before opening and viewing any files that the ESP sent to NCMEC, which then sent the files to law enforcement.
(¶8).
SCOW focuses on the second question in order to resolve this appeal. Importantly, before answering that question, it first clarifies the proper legal standard for determining whether a private or government search has occurred. (¶13). SCOW first observes that SCOTUS, in Skinner v. Ry. Lab. Execs.’ Ass’n, has clearly stated that this question is resolved using a totality of the circumstances analysis. (¶15). However, while SCOW’s decision in State v. Payano-Roman claimed to adopt that standard, it also articulated what appears to be an independent three-factor test that is unique to Wisconsin. (¶16). SCOW clarifies, however, that the governing test remains the totality of the circumstances. (¶19). While Payano-Roman speaks of three factors, these are “considerations” rather than “requirements.” (Id.). “Although a court may analyze these considerations—whether the police initiate, encourage, or participate in the search; the private actor’s purpose; and whether the search was a joint endeavor—no one consideration is dispositive. In the end, this approach stays true to the totality of the circumstances analysis in Skinner and Payano-Roman.” (Id.).
Applying the totality of the circumstances test, SCOW finds that Rauch-Sharak has not proved (as he bears the burden on this question) “that Google acted as an instrument or agent of the government” when it searched his files. (¶20). Here, the government had no involvement in the initial scan, which Google conducted “on its own.” (¶22). It also had a “business purpose independent of any desire to help law enforcement”–the interest in keeping its platform free of CSAM–which “suggests that Google was not acting as an agent or instrument of the government.” (¶23).
SCOW therefore rejects Rauch-Sharak’s arguments to the contrary. First, it disagrees that the involvement of NCMEC is relevant. (¶24). Although it does not reach the question of whether NCMEC is a “government actor,” it finds that NCMEC providing Google with a list of known CSAM files “is too attenuated to constitute participation in a search.” (Id.). “Moreover, it appears that Google may be able to scan user content for CSAM without NCMEC’s list, contrary to Rauch Sharak’s argument.” (Id.). And, in any case, NCMEC had no involvement in the actual scanning of files at issue here. (Id.).
Second, Rauch-Sharak claims that certain federal statutes create a sufficient quasi-government relationship, as those statutes “encourage Google to scan for CSAM and provide a law-enforcement reason for Google’s search.” (¶25). SCOW finds these arguments unavailing:
- 18 U.S.C. § 2258A: This statute creates affirmative reporting requirements for ESPs like Google who discover CSAM on their platforms. However, the statutory scheme also contains an explicit disclaimer that “nothing in this section shall be construed to require a provider to…affirmatively search, screen, or scan for” CSAM. (¶26). That disclaimer is sufficient to blunt the potential impact of 2258A in establishing a government search. (¶27).
- 47 U.S.C. § 230: Rauch-Sharak believes that this statutory scheme “encourages ESPs to scan for CSAM by granting immunity to ESPs that moderate content and creating civil and criminal liability if ESPs do not scan for CSAM.” (¶29). SCOW disagrees. “While § 230(c) may grant immunity to ESPs that choose to scan for CSAM, it does not require, reward, or incentivize scanning for CSAM in the first place.” (Id.). Although Rauch-Sharak points to another portion of the statutory scheme regarding sex trafficking as creating a risk of “criminal liability for failing to remove CSAM from their platforms” SCOW labels this portion of the statutory construction argument undeveloped and cites persuasive federal case law disputing his interpretation. (¶30).
SCOW also observes that the almost all state and federal courts who have analyzed this question have concluded that “ESPs like Google are private actors when searching for CSAM on their platforms.” (¶31). While federal statutes may encourage such searches, this does not transform the ESP into an instrument or agent of the government. (Id.)
Having resolved the central question, SCOW briefly comments on the remaining issues certified by COA. First, it holds that the law enforcement agent did not need a warrant before opening and viewing the suspected CSAM, an issue recently resolved in Gasper. (¶34). Second, it declines to resolve the reasonable expectation of privacy issue given its holding that no Fourth Amendment violation occurred here. (¶35).