Wisconsin Supreme Court OKs warrantless searches of potential child porn

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Tuesday unanimously held that Google’s voluntary scan for child sexual abuse materials is constitutional.

Andreas Rauch Sharak stored child sexual abuse materials in his Google Photos account in violation of the terms of service, which warned such materials would be removed if detected and reported to the National Center for Missing & Exploited Children.

The platform uses third-party software to scan accounts for child sexual abuse materials. It flagged suspected contraband in Rauch Sharak’s account before a Google employee viewed to confirm the materials and sent a so-called "cyber tip" to the center.  

The center forwarded the tip to local law enforcement, where the files were viewed without a warrant. Rauch Sharak pushed the lower court to suppress the files, arguing that Google acted as an agent of the government when it scanned his account for contraband.

His motion and subsequent appeal were denied, and he was convicted of possession of child pornography. He renewed the same argument before the Wisconsin Supreme Court in September 2025.

On Tuesday, the state's top court unanimously affirmed his conviction, determining Google operated as a private actor when it scanned Rauch Sharak’s account and the search did not implicate his Fourth Amendment right to privacy.

The court also found that law enforcement did not need a warrant to view the cyber tip because it falls under the private search doctrine as Google’s software had already identified the contraband.

Whether a private actor is acting as an instrument of the government turns on the extent of the government’s participation in the search, Justice Janet Protasiewicz said in the 13-page opinion.

In this case, the government was not involved in the broad scan of all Google Photos accounts for child sexual abuse materials. Google is not mandated to search for contraband and conducts the search for the purpose of improving the user experience by removing child sex abuse from its platform.

Rauch Sharak argued before the court that a federal law requiring social media platforms create a cyber tip if child sexual abuse materials are found creates a legal incentive to scan for those materials.

This argument is unconvincing, Protasiewicz said, because the statute contains a disclaimer that the provider is not required to search, screen or scan for child sexual abuse materials.

Other statutes granting immunity to platforms that moderate content and conduct scans for contraband still do not situate the platforms as government actors because there is no reward or incentive to do so, according to Protasiewicz.

“Rauch Sharak has not met his burden to show that Google acted as an instrument of the government here,” Protasiewicz said. “Google scanned and viewed [his] files on its own … And even though federal statutes may encourage these searches, they are not enough to make Google an agent of the government.”

A clear precedent

The justices decided a similar case in January involving Michael Gasper, who was storing a 16-second video depicting child sexual abuse in his Snapchat library.

Snapchat and Google both employ Microsoft’s PhotoDNA software to perform sweeps for child sexual abuse material. In Gasper’s case, Snapchat employees sent the file to NCMEC without viewing it, relying only on the software to identify it as contraband.

When police later viewed the video without a warrant, Gasper argued they went beyond the scope of Snapchat’s initial private search. The justices disagreed, finding that the search was limited to the cyber tip from NCMEC, which did not amount to a warrantless search of Gasper’s property.

Rausch Sharak’s case differed because a Google employee viewed the file before law enforcement, but, based on the reasoning in the Gasper opinion, it might not have mattered if they hadn’t.

The opinions together create a clear precedent for future cases: Law enforcement may view cyber tips without a warrant, even if they are the first to lay eyes on the actual content of the tip.  

In both cases, the justices sidestepped the question of whether Rausch Sharak and Gasper had a reasonable expectation of privacy in their online accounts where the terms of service say that an account will be scanned for illegal content.

Protasiewicz reasoned in Tuesday’s opinion that the court wasn’t required to consider that question after it already found that no Fourth Amendment violation had occurred.

However, the appellate court’s finding in Gasper’s case that the terms of service warning about scans eliminates any expectation of privacy would be applicable to Rauch Sharak, as well.   

Rauch Sharak’s attorney did not immediately respond for comment on Tuesday’s opinion.

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