Bottom line: Google is a private actor when it scans user accounts for child sexual abuse material, so its searches do not trigger Fourth Amendment protections, and law enforcement can view the flagged files without a warrant under the private search doctrine.
Private search doctrine shields Google’s CSAM scanning from Fourth Amendment challenge
The private search doctrine played a central role in the Wisconsin Supreme Court’s unanimous decision in State v. Rauch Sharak, 2026 WI 4. The court held that Google acted as a private actor when it scanned a user’s files for child sexual abuse material (CSAM) and reported the content to law enforcement. Because the private search doctrine applies, the Fourth Amendment did not protect the defendant’s files from warrantless review by police.
This opinion resolves a certified question from the Court of Appeals. It aligns Wisconsin with every federal circuit and other state supreme courts that have addressed this issue. For anyone facing child pornography charges in Wisconsin, this case defines the legal framework courts will use to evaluate suppression arguments based on how electronic service providers detect and report illegal content.
Google flags files in a Jefferson County man’s account
In August 2021, Google’s automated scanning system flagged four files in a Google Photos account as potential CSAM. The files matched a list of known child sexual abuse material. After the system flagged the files, a Google employee opened and viewed each one. Google then submitted a CyberTip to the National Center for Missing & Exploited Children (NCMEC). The tip included the four files, the suspect’s name (“Andreas Rauch”), location data, and an IP address.
NCMEC forwarded the tip to the Wisconsin Department of Justice. The Department subpoenaed the associated telecommunications company and traced the IP address to a dwelling in Jefferson County. It then forwarded the tip to the Jefferson County Sheriff’s Office.
A detective at the Sheriff’s Office viewed the files from the CyberTip without first obtaining a warrant. He then secured a search warrant for Rauch Sharak’s home and electronic devices. When officers executed the warrant, they found CSAM on Rauch Sharak’s phone. Prosecutors charged him with 15 counts of possession of child pornography.
Rauch Sharak filed a motion to suppress the evidence. He argued that Google acted as an instrument or agent of the government and that its warrantless search of his files violated the Fourth Amendment. The circuit court denied the motion without holding an evidentiary hearing. Rauch Sharak then pled guilty and appealed.
The private search doctrine and the totality of the circumstances test
The Fourth Amendment generally protects people from unreasonable government searches. But it does not restrict private actors. Under Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), a private entity becomes subject to the Fourth Amendment only when it acts as “an instrument or agent of the Government.” Courts determine this by looking at the totality of the circumstances and evaluating the degree of government participation.
Wisconsin adopted this test in State v. Payano-Roman, 2006 WI 47. That case listed several considerations: whether police initiated, encouraged, or participated in the search; whether the private entity acted to further its own purposes; and whether the search was a joint endeavor with government actors. Rauch Sharak argued each consideration was a strict requirement. The Supreme Court disagreed. It clarified that the Payano-Roman factors are considerations within a totality of the circumstances analysis. No single factor is dispositive.
Under the private search doctrine from United States v. Jacobsen, 466 U.S. 109 (1984), law enforcement may repeat a private actor’s search without implicating the Fourth Amendment, so long as officers do not exceed the scope of the original private search.
Court holds Google acted independently of government
Applying the totality of the circumstances test, the court found Rauch Sharak failed to carry his burden. Several facts drove the analysis. Google scanned the files on its own, without any law enforcement participation. A Google employee viewed the flagged images independently. The government only became involved after Google submitted the CyberTip.
Google also had a clear business reason for its scanning. Its terms of service require users to comply with applicable laws “to maintain a respectful environment for everyone.” Its abuse policies describe checking for illegal content as part of maintaining a positive user experience. The court cited federal cases recognizing Google’s independent commercial interest in removing CSAM from its platform.
Rauch Sharak raised two main counterarguments. First, he claimed NCMEC participated in the search by providing Google with a list of known CSAM hash values. The court rejected this, calling the provision of an identification tool “too attenuated to constitute participation in a search.” Second, he pointed to federal statutes like 18 U.S.C. § 2258A and 47 U.S.C. § 230, arguing they encouraged or compelled Google to scan for CSAM. The court acknowledged these statutes may encourage scanning but found they fall short of converting Google into a government agent. Section 2258A explicitly disclaims any requirement that providers “affirmatively search, screen, or scan” for CSAM.
Warrantless review of CyberTip files survives under the private search doctrine
Because Google was a private actor, the court applied the private search doctrine to the detective’s warrantless review of the CyberTip files. A Google employee had already opened and viewed the same images. Rauch Sharak conceded that the detective’s review did not exceed the scope of Google’s search. So the detective’s viewing of the files was not a “search” under the Fourth Amendment, and no warrant was required.
The court declined to reach the question of whether Rauch Sharak had a reasonable expectation of privacy in his Google account. Because no Fourth Amendment violation occurred, that question was moot. The court also noted a companion case, State v. Gasper, 2026 WI 3, which addresses whether law enforcement exceeds a private search’s scope when an ESP only scanned files automatically but did not open and view them.
This ruling places Wisconsin squarely in line with the Seventh Circuit (United States v. Bebris), the Ninth Circuit (United States v. Rosenow), the Sixth Circuit (United States v. Miller), and the supreme courts of Minnesota and Vermont. The private search doctrine now provides a clear framework for Wisconsin courts evaluating suppression motions in CSAM cases involving electronic service providers.
Contact Van Severen Law Office
If you face child pornography possession charges or other sex crime charges in Wisconsin, the attorneys at Van Severen Law Office, S.C. can help. Our firm handles cases involving Fourth Amendment suppression issues, digital evidence, and searches of electronic accounts. We regularly defend clients against serious felony charges across Wisconsin.
Call (414) 270-0202 for a free consultation.