Discord Banned Me for Child Safety: Does Discord Report to NCMEC??

Discord Banned Me for Child Safety: Does Discord Report to NCMEC?

Does a child-safety ban mean Discord reported you to NCMEC?

Discord says it takes the protection of children on its platform seriously, and this includes sharing reports of suspected child exploitation with NCMEC’s CyberTipline. However, a child-safety ban does not prove that Discord has filed a CyberTip. While a child-safety ban may or may not be the result of a CyberTip, Discord has stated that it can ban users for child safety reasons without prior notice, and this notice includes the fact that the user’s information has been shared with NCMEC.

What Is NCMEC?

The National Center for Missing and Exploited Children (NCMEC) is a non-profit organization which acts as the U.S. clearinghouse for reports of child exploitation online. When companies such as Discord discover content that appears to be child exploitation, they may send a CyberTip to NCMEC; NCMEC then shares this information with law enforcement when appropriate.

Is Discord Banning Users More Frequently for Child Safety?

While Discord does not report the total number of accounts banned for child safety, the number of accounts reported to NCMEC by Discord has increased substantially in recent years. In early 2021, Discord reported 9,497 accounts to NCMEC; by late 2022, the number of CSAM-related reports Discord has sent to NCMEC has reportedly increased by 474% over a single year. This trend prompted Florida Attorney General James Uthmeier to subpoena Discord recently for information about the company’s child-safety practices.

According to Florida’s news release, “The subpoena sought information about Discord’s practices to ensure users are who they say they are and that Discord does not facilitate any child safety risks.” This information includes Discord’s age-verification practices, how Discord detects illicit content, and how frequently Discord shares reports with law enforcement agencies.

Does a child safety ban mean Discord filed a CyberTip?

Discord’s Child Safety Rules Discord’s

rules regarding child safety are intentionally broad in scope. These rules apply to underage users attempting to join the platform, grooming behavior, sexting involving minors, and content that features sexualized depictions of fictional characters that appear to be minors.

So, regardless of what you did (or what you’re accused of doing) that led to your child safety ban, your account’s activity falls under the “child safety” umbrella if it relates to any of these four behaviors.

To get a clearer picture of why your account was banned, you will need to review Discord’s Community Guidelines in detail, and work with a member of our legal team to identify the allegations against you.

Statutory Requirements for Electronic Service Providers (ESPs)

Under the federal reporting statute, 18 U.S.C. § 2258A, electronic service providers (ESPs) must report suspected child sexual abuse material (CSAM) to NCMEC when they obtain “actual knowledge of facts or circumstances that indicate an apparent violation of 18 U.S.C. § 2241 (the federal statute banning the production, distribution, and possession of CSAM).”

At the same time, the statute also explains that providers are not required to affirmatively monitor users for CSAM, and they are permitted to do so “at the provider’s election.” However, once a provider such as Discord finds out about a possible violation, it generally has no choice but to file a report.

Under section 2258A(f), nothing in the statute requires a provider to monitor any user, subscriber, or customer, to monitor the content of their communications, or to affirmatively search, screen, or scan for the facts or circumstances described in subsections (a) and (b). That protection is limited to the decision whether to look; once a provider does obtain actual knowledge of an apparent violation, including through automated hash-matching tools, the reporting obligation in subsection (a) applies. As NCMEC reports indicate, the overwhelming majority of reports sent to NCMEC are the result of automated detection.

Can I determine if Discord has submitted a CyberTip?

Does a Discord ban notice state whether the company has filed a CyberTipline report? No.

In general, Discord does not confirm when it files a CyberTipline report, nor does it notify banned users of NCMEC submissions.

Similarly, NCMEC does not notify the subject of a report when it makes a CyberTipline submission. Rather, it forwards relevant reports to federal and state law enforcement agencies on a case-by-case basis.

So, even if you’ve been banned for child safety violations, there is no way to definitively determine whether Discord filed a CyberTipline report.

Even if you have successfully appealed your ban, this will not confirm whether your account’s activity was reported to NCMEC. While you may have had your account restored, any reports Discord filed will remain on file.

What did the REPORT Act change about CyberTips?

Under section 2258A(b) of 18 U.S.C. § 2258A, reports to NCMEC of CSAM must include specific information, including a description of the suspected content and the identity of the sender and receiver. While section 2258A(b) originally applied exclusively to suspected CSAM, recent enactments of the REPORT Act (Public Law 118-59), signed into law in May 2024, have expanded the mandatory reporting provisions of 18 U.S.C. § 2258A to apply to suspected child sex trafficking and child enticement offenses as well.

Along with expanding the scope of provider reporting obligations, the REPORT Act also introduced various other changes to the federal CyberTip system. Among these changes are:

• Expanding reporting obligations to include suspected child sex trafficking offenses;
• Expanding reporting obligations to include suspected enticement of children;
• Extending the duration for which ESPs must preserve the content of suspected CSAM and other content reported to NCMEC under section 2258A(h) from 90 days to one year; and,
• Increasing penalties for ESP failures to comply with reporting obligations under section 2258A, in many cases to the amount applicable under section 2258A(e).

Under section 2258A(e) of 18 U.S.C. § 2258A, an ESP, its officers, and other relevant individuals can be held subject to civil and criminal liability if they are “found to have been willfully in violation of section 2258A” or have “knowingly fail[ed] to comply with any provision of section 2258A(e).” The statute also makes clear that, under the REPORT Act, the provisions of section 2258A(e) also apply to suspected child sex trafficking and child enticement offenses.

As a result, any child safety-related ban on Discord that may result in a CyberTip carries the same risks that apply to violations involving CSAM. When facing any level of scrutiny, the best step is to immediately engage the services of an experienced federal criminal defense lawyer. Spodek Law Group is available to provide strategic counsel and representation in matters involving suspected child sex trafficking, child enticement, and CSAM. We are available to provide representation for any types of investigations, including those initiated following an NCMEC report.

What happens after NCMEC gets a Discord report?

What happens after Discord files a CyberTipline report with NCMEC? While NCMEC receives millions of reports every year, it does not investigate cases itself. Instead, NCMEC reviews CyberTipline submissions and then forwards qualifying reports to the appropriate law enforcement agencies for further investigation.

For CyberTips involving suspected crimes committed within the United States, NCMEC routinely routes these referrals to local and federal investigators. From those referrals, CyberTips may route to investigators with the FBI, U.S. Attorney’s Offices, the Department of Homeland Security, or other various investigative agencies. Local and state law enforcement officers and investigators also regularly receive CyberTipline referrals; and, in many cases, these referrals are routed through affiliates of the Internet Crimes Against Children (ICAC) Task Force or other computer crime task forces, which are composed of a combination of federal, state, and local law enforcement officials.

So, what will a CyberTipline report sent to NCMEC include? Typically, if an ESP such as Discord files a CyberTipline report, it will include not only information identifying the suspected sender and receiver, but also an attached copy of the offending content (or, as sometimes the case, the offending content’s hash value), the account holder’s IP address, and the date and time the content was sent. While this information allows investigators to identify the users who are suspected of violating the federal criminal statutes, the fact that this information was sent to NCMEC does not, in itself, guarantee that a criminal investigation will be launched.

When will a user find out about a CyberTipline report? Federal law enforcement agents typically do not contact users who are subject to investigations following a report to NCMEC. Instead, they will execute search warrants to obtain a suspect’s device, and, while in possession of the device, they will execute search warrants to obtain a suspect’s internet service provider records and other information. As a result, users often do not learn that they have been the subject of an investigation until search warrants have been executed. These search warrants are often executed months or even years after a provider such as Discord may have shared information with NCMEC.

Are CyberTipline cases always federal cases? No. Although CyberTips identify potential violations of federal criminal statutes, they are also reported to local and state law enforcement, and federal investigators regularly refer cases to state prosecutors when appropriate. As a result, CyberTipline cases are prosecuted in state courts as frequently as they are prosecuted in federal courts. In state courts, CyberTipline cases are routinely prosecuted under state laws that mirror the provisions of the federal statutes.

So, regardless of how a federal criminal investigation was initiated, federal law enforcement investigators will seek to collect as much evidence as possible before knocking on your door.

Can police identify me from Discord after a ban?

The Stored Communications Act The Stored Communications Act (SCA),

18 U.S.C. § 2701-2712, is a federal statute that governs some requests by law enforcement to electronic service providers. Generally, it is permissible for law enforcement to issue subpoenas, court orders, and search warrants under the SCA. However, as you dive deeper into the statutory language of the SCA, you will see that this statute requires stronger legal process for various types of data. For example, while a subpoena is sufficient for basic subscriber records, more extensive information, such as a copy of a user’s stored communications, will generally require the authorization of a search warrant issued by a judge.

While a subpoena is sufficient to uncover information such as your account’s creation date, IP address, and login information, your account’s contents will generally require more extensive legal process. This means that, while the content of messages sent on Discord can be difficult for federal law enforcement to access, access to other information is relatively easy. If your account has been banned, your messages will likely not be deleted immediately, so it could still be possible for law enforcement to subpoena or seize a copy of any communications that you sent on Discord prior to your account’s ban.

Identification of Users Based on IP Address Even if Discord

is unable to identify a specific user, investigators can often uncover the identities of users who are not using verified accounts based on IP logs. If you are using a verified account, Discord will have your account’s verified email address and other personally identifying information. If not, Discord may only have information about your account’s IP address.

So, what will investigators do with an IP address? An IP address does not identify a specific person; rather, it identifies the internet connection that a specific user used to access the internet. However, investigators can use this information to issue a subpoena to the user’s internet service provider (ISP). While the ISP will not identify the specific user who accessed the internet through an IP address, the ISP will be able to link a specific IP address to a specific subscriber’s address. This subscriber’s address can then be used to identify the account’s subscriber. If investigators believe that you are the account’s subscriber, they can use your subscriber information to establish probable cause to execute a search warrant at your house or office.

Are Deleted Discord Files and Messages Recoverable?

Discord does not delete Discord files, messages, or other user-generated content immediately. This means that, in most cases, it will still be possible for investigators to obtain a copy of your deleted Discord messages, media, and other data if they have been able to identify your account, and if you haven’t been able to wipe your data.

Can a Discord hash match be challenged in court?

PhotoDNA According to Discord,

the platform uses PhotoDNA to identify known child sexual abuse material (CSAM). PhotoDNA is a software created by Microsoft Corporation and used by several other major online platforms. It compares images uploaded by users with PhotoDNA’s hashes, which are, essentially, digital fingerprints of CSAM content that was previously identified. So, if a user uploads content that generates a known-hash, Discord’s internal systems are triggered, the platform is notified of the content’s nature, and content such as PhotoDNA identifies suspected content as CSAM. This detection differs from detection by a human being, and is a key factor in cases involving hash-matched content.

United States v. Wilson In United States v. Wilson, 13 F.4th 961 (9th Cir. 2021),

federal investigators worked with NCMEC to identify potentially problematic files on an individual’s computer. Although NCMEC only received the file, no warrant was required to review the content of the file. However, once NCMEC found evidence of suspected child exploitation content in the file and began conducting an expanded review, NCMEC’s conduct came under scrutiny. At the same time, the defense argued that the review of the file without a warrant violated the Fourth Amendment. Ultimately, the Second Circuit concluded that NCMEC’s review of the file without a warrant was permitted under the Fourth Amendment, but not that NCMEC was permitted to conduct an expanded review of the content without a warrant.

As a result, the court’s ruling in United States v. Wilson provided clear guidance on the scope of the government’s authority to review material that is shared with NCMEC. If law enforcement agents and NCMEC agents are analyzing material on a non-defendant’s computer, they need a warrant to search for CSAM and other material. This holds even if the material is not child exploitation in nature and if the review was the result of a CyberTipline report.

United States v. Reddick In United States v. Reddick, No. 1:21-cr-00156 (N.D. Cal. 2021),

federal prosecutors charged a defendant with violating 18 U.S.C. § 2252B and 18 U.S.C. § 2252A(b) after receiving a CyberTipline report from Facebook in 2016. The report included a link to an image on the defendant’s Facebook account. After identifying the image as CSAM, investigators obtained a search warrant for the defendant’s devices. The defendant’s attorney filed a motion to suppress the government’s evidence, arguing that Facebook’s search of the image violated the Fourth Amendment and that the government’s reliance on a CyberTipline report triggered Fourth Amendment scrutiny. However, the court denied the motion to suppress.

United States v. Ackerman In United States v. Ackerman, 2021 U.S. District LEXIS 445 (D. Nev. 2021),

federal prosecutors charged a defendant with child sexual abuse material possession and distribution. Similar to United States v. Reddick, this case also involved a CyberTipline report from Facebook. The CyberTipline report triggered an investigation, which eventually led to federal agents executing a search warrant at the defendant’s home and office.

The defendant’s attorney argued that NCMEC’s expanded review of the content triggered Fourth Amendment scrutiny. However, the defendant’s attorney failed to prove that NCMEC was a governmental entity or government agent. The court did not apply the Fourth Amendment’s warrant requirement to the review of content by NCMEC unless the reviewing individual is a law enforcement agent.

As a result, the defendant’s attorney’s motion to suppress the evidence was denied in the case of United States v. Ackerman.

United States v. Miller In United States v. Miller, No. 20-cr-00070 (D. Utah 2021),

federal prosecutors charged a defendant with possession of CSAM after receiving a CyberTipline report from Facebook in 2018. Similar to the case of United States v. Reddick, this case also involved a hash-matched report from an online company. The defendant’s attorney argued that Facebook’s search of the report violated the Fourth Amendment and that the government’s reliance on the report also triggered Fourth Amendment scrutiny. However, the court denied the motion to suppress and affirmed the validity of the government’s search of the defendant’s devices and home.

What should I avoid after a Discord child safety ban?

If you have been banned by Discord for child safety reasons, be cautious. Even if you believe the ban is unjustified, your next steps could have consequences you didn’t expect. We strongly advise you to refrain from taking any action, including appealing your ban, before speaking with a an attorney at Spodek Law Group

1. Drafting and Sending a Written Appeal

If you have been banned for child safety reasons, do not attempt to appeal your ban with a written statement. Written appeals are admissible as evidence in federal proceedings, and anything you send to Discord can be obtained under the Stored Communications Act, 18 U.S.C. § 2701-2712.

2. Wiping Your Devices

If you have been banned for child safety reasons, do not wipe your devices. Under 18 U.S.C. § 1519, it is a criminal offense to destroy, alter, conceal, falsify, or make false entries in any record or document in anticipation of or with the intent to obstruct a federal investigation. Attempting to wipe your devices is a form of electronic spoliation that can result in federal criminal charges, regardless of whether the underlying investigation leads to charges.

3. Creating a Replacement Account

If you have been banned for child safety reasons, do not create a new Discord account. Under Discord’s Terms of Service, you cannot create a replacement account after being banned, and creating a replacement account or attempting to bypass Discord’s ban will only alert Discord to your apparent “intent” to continue using the platform.

4. Contacting Server Members

If you have been banned for child safety reasons, do not contact server members or other Discord users. Reaching out to other Discord users can be viewed as an attempt to coordinate stories, tamper with witnesses, or destroy evidence. This behavior can present additional risks that are unrelated to the original CyberTipline report and that could present evidence of consciousness of guilt and/or intent to obstruct law enforcement.

5. Assuming a Report is Final

If you have been banned for child safety reasons, do not assume a report to NCMEC is final. Companies are permitted to send supplemental and corrective CyberTipline reports to NCMEC. If you delete messages or other media, remember that while they may disappear on your end, Discord may still have a copy.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.