He pleaded not guilty to the charges and is due back in court on Wednesday for a hearing about a motion he filed arguing that Facebook was acting as a government agent when it and its partners searched his messages and alerted law enforcement.
He says his constitutional rights were violated.
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“The Fourth Amendment protects against unreasonable searches and seizures. Individuals have a right to be free from such unreasonable conduct by the government and its agents,” the motion asking for the evidence to be suppressed says. “However, this circuit has not yet decided whether certain technologies and corporations (namely, NCMEC (the National Center for Missing and Exploited Children), PhotoDNA, and Facebook) can act as a government agent.”
“NCMEC, and therefore the government, is aware of Facebook’s consistent searches of user-profiles, and Facebook acts with a purpose of helping the government,” the motion says. “So, Facebook is an agent of the government, and its continuous searches of user data falls within the bounds of the Fourth Amendment.”
Attorney Jason Luczak, who is part of the team representing Bebris, said the question is an important one in today’s society.
“We are asking the court to recognize that Mr. Bebris, and all individuals, have a privacy interest in the private online communications that they have, regardless of where that information is ultimately stored,” he said. “The shift in our society’s wide-scale use of digital communication makes this recognition important.”
Bebris’ legal troubles began about a year ago when Facebook discovered that Bebris uploaded a couple of child pornography images onto Facebook Messenger in September 2018, according to a court document filed by prosecutors.
“Facebook relayed that information to the National Center for Missing and Exploited Children, which then sent it to local law enforcement in Wisconsin,” the document says.
The discovery led police to obtain a search warrant and raid his home, where more child pornography was allegedly found, the document says. Other court documents previously obtained by the Dayton Daily News says the images were of boys and girls between the ages of 1 and 10, some engaging in sexual activity, along with some bestiality.
Prosecutors said in a memorandum filed in the case this weekend that Facebook isn’t an agent but rather by law has an obligation to report known instances of suspected child exploitation. They also say that Facebook’s terms of service prohibit child pornography.
“While some courts have concluded that individuals possess a reasonable expectation of privacy in their private email content stored with a commercial ESP (electronic service provider), courts have also found that a user’s violation of an ESP’s terms of service can render a privacy expectation objectively unreasonable.
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“Facebook’s policy expressly states it does not allow any content that involves the sexual exploitation of children to be uploaded, shared, or otherwise kept on its platform. And it notifies users that ‘when we become aware of apparent child exploitation, we report it to [NCMEC], in compliance with applicable law,” the memorandum says. ” Further, Facebook users are put on notice that Facebook collects data about ‘the content, communications and other information you provide when you use our Products,’ and that it uses this information to “combat harmful activity … and promote safety and security on and off of Facebook products.”
A prosecutor’s spokesman declined to comment for this article ahead of the hearing.
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