My Husband's Account Was Disabled for CSAM: What I Need to Know.

The threshold for reporting suspected CSAM to NCMEC is very low. When a social media company reports content to NCMEC, it does not need proof that a user committed a crime. Instead, it only needs to have a “good faith belief” that the content involves child exploitation material.

Disabling an account is not proof that a user knowingly and illegally possessed CSAM. It may be that the user is entirely innocent, or that a computer system flagged content by mistake. However, once a referral is made to NCMEC, law enforcement is required to take action. An investigation will begin regardless of the user’s innocent intent or lack of knowledge.

Users should not try to appeal to social media companies to get their accounts reinstated. Even if a user is innocent, submitting an appeal could inadvertently provide evidence to the authorities. Furthermore, appeals are reviewed by company management teams, who are not bound by the confidentiality agreements that would apply if a user worked through a defense attorney. An attorney can advise whether it is appropriate or effective to attempt to restore access to the disabled account.

The principle of preserving evidence applies in these situations as well. If a device or account is suspected to contain illegal material, it must be preserved in its original state. Users should not delete any files, wipe hard drives, factory reset devices, delete social media accounts, or delete messages.

A referral to NCMEC’s CyberTipline is not a criminal charge, but it triggers a federal criminal investigation. The government has a wide latitude to investigate suspected CSAM cases, and it is not uncommon for investigations to begin based on a mistaken system match. However, criminal cases can be built upon such mistakes, and early intervention by a defense attorney is critical.

What happens after a provider reports suspected CSAM?

Under U.S.C. § 2258A, providers with “actual knowledge” that an apparent violation of federal CSAM laws has occurred must report the suspected crime to the National Center for Missing and Exploited Children (NCMEC). The reporting obligation applies to all “electronic communication service providers” operating in the United States.

The statute creates a “good faith” standard for providers. As a result, the threshold for reporting suspected CSAM to NCMEC is very low. Even if the provider does not have positive proof that the user committed a crime, if it believes (in good faith) that a crime has been committed, it must report.

NCMEC’s Role

NCMEC itself is not a law enforcement agency and does not have the power to conduct criminal investigations or arrest users. Instead, NCMEC acts as a clearinghouse for all referrals to the “CyberTipline.” NCMEC then forwards information gathered via the CyberTipline to appropriate federal, state, or local law enforcement agencies. In cases involving CSAM, the reported information typically goes to the federal government’s Computer Crimes Task Force, which is composed of investigators from various federal law enforcement agencies.

Content of a CyberTipline Report

A CyberTipline report can be very detailed or very brief. It can include flagged files or photos, the account identifier, the user’s IP address, the timestamp of the activity, a list of the user’s devices and their identifiers, or any other information that the provider had on hand at the time.

Variation in CyberTipline Reports

How much information is included in a CyberTipline report depends on several factors. The product, account settings, available evidence, and provider’s procedures may affect how much information makes it into a report. As a result, it is impossible to know exactly what information was shared without obtaining the actual report in question.

Investigative Timeline

A provider’s review of the report, routing through NCMEC, determining the appropriate investigating agency, the agency’s staffing, the investigator’s caseload, and agency priorities can all lead to delays in the timing of the report and investigative action. There is no set timeline for how long any of these steps will take. However, it is common for these stages to take several months, which means that a user can only find out about the report and investigation weeks or months after an account was disabled or reported.

What should I do during the first 24 hours after learning about my husband’s account disablement?

The first 24 hours after learning about a suspected CyberTipline report are critical. If you are concerned about a potential federal investigation into your husband’s internet activities, you should consult with a Cybercrime defense attorney at Spodek Law Group immediately. After your initial consultation with an attorney, the following steps are likely appropriate.

Not submitting an appeal to the platform

Many social media companies give users the option to submit an appeal. However, in the case of a CSAM investigation, you should avoid doing so before speaking with an attorney. An appeal constitutes a record that federal investigators may eventually be able to obtain. The content of an appeal can inadvertently expose your husband to additional allegations and complications.

Not deleting any digital evidence

You should not delete any digital evidence. Deleting suspected CSAM, wiping hard drives, destroying computers or smartphones, or attempting to wipe data from a computer or other device may be a criminal offense under 18 U.S.C. § 1519. This federal statute forbids the intentional destruction of evidence and imposes harsh penalties for those who impede federal criminal investigations.

Not opening the files

If your husband’s computer or mobile devices contain files that you suspect are CSAM, you should not open the files. All files have an access timestamp that is recorded by the computer. Forensically, these timestamps are analyzed to determine if a user viewed a file. Accessing the file or attempting to determine its contents may expose your husband to additional criminal exposure and complicate forensic interpretation.

Not copying, forwarding, or trying to upload the files

Like opening the files themselves, copying the files to another device, forwarding them to another user, or attempting to upload the files to a social media platform can provide evidence of intent, possession, or distribution of child exploitation material.

Preserving disablement notices, account recovery alerts, and other relevant information

Preserve copies of the disablement notice, the appeal emails, any account recovery emails, and make a note of the relevant dates. Do this without accessing the account or changing the security settings on the account.

Ensure that you provide the foregoing information to your Cybercrime defense attorney as soon as possible.

Could shared devices put me or my children at risk?

Potential Witness Tampering

If anyone else in the household has used the shared device, account, or Wi-Fi, do not contact them about this. Once someone else’s personal device, account, or other information is linked to the investigation, that individual may be considered a potential witness. Contacting a potential witness without a federal investigator’s knowledge and approval can lead to criminal prosecution under 18 U.S.C. § 1512, which imposes criminal penalties for witness tampering.

Living Arrangements and Family Obligations

While these situations are deeply upsetting, account disablement does not, in and of itself, mean your husband needs to leave your home or that you need to take any steps to separate your finances. These are personal decisions. Additionally, unless your husband is subject to court-ordered restrictions on child contact, you are generally free to continue normal household operations.

Shared Liability, Seizure, and the Spouse as Witness

While sharing a home’s Wi-Fi, a specific social media account, or the devices themselves does not imply knowingly possessing or distributing CSAM, shared device ownership can leave a spouse’s property vulnerable to seizure under a search warrant. However, while a warrant authorized the seizure of the devices and other property, this alone does not establish criminal liability without actual evidence that the spouse knowingly participated in the crime.

In addition to the risk of property seizure, the status of a spouse can leave that spouse in the position of a witness regarding account access, the devices, or the household’s internet habits.

Coaching Children’s Testimony

Along with witness tampering, 18 U.S.C. § 1512 also prohibits corruptly attempting to influence, prevent, or mislead anyone (including a child) for the purpose of preventing testimony or which may otherwise “interfere with the administration of justice.” This statute carries criminal penalties for those convicted, including up to 20 years of federal imprisonment.

CPS Investigations

Finally, while this is not a criminal prosecution, investigations by child protective services (CPS) can arise even in the absence of criminal charges if child safety risks are suspected. The possibility of a CPS investigation, while very real in some cases, can make the stakes in an investigation much higher.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

What should I do if agents come to our home?

Questioning

If federal agents show up at your home, you are not required to answer their questions. You have the right to decline to speak with federal agents and to ask that they contact your attorney.

Search Warrant

While you have the right to be present during the execution of a search warrant, you also have the right to ask to see the warrant before it is executed. Once agents obtain the warrant, the warrant grants agents the right to enter the premises and execute the search regardless of the occupant’s consent.

Even so, unless you have explicitly authorized the agent to go outside the scope of the warrant, you have the right to deny consent. Without consent, you have the right to ask that agents only look in areas where they can reasonably find evidence of the crimes in the warrant.

Search Warrant Documentation

Under Federal Rule of Criminal Procedure 41, executing agencies are required to provide a copy of the warrant to the occupant and a receipt of the property that is seized. Note that the warrant and property receipt are distinct from each other and you have a right to obtain copies of each.

Questioning during a search

Again, unless you have voluntarily agreed to discuss anything, you do not need to answer agents’ questions. While some of the information you provide may be helpful to the investigators’ case, such information can also become evidence of criminal involvement. Answers that identify the owner of a device, any users, any passwords, and other similar information can all be used as evidence in future criminal proceedings.

Access to Locked Devices

If you or your spouse has a locked device that is subject to seizure under the warrant, federal agents will not have access to any of the files inside. At the time, the agents may try to ask the device owners to voluntarily provide the password. However, if the agents do not have a warrant that specifically compels the owners to provide the password, then you are not legally required to do so.

When it comes to unlocking devices using biometric identifiers, courts around the country continue to rule differently. Some argue that it falls within the Fifth Amendment privilege against self-incrimination. Others argue that this exception does not apply, meaning an occupant may be compelled to provide biometric identification to unlock a phone, tablet, or computer.

Could a backup, shared folder, or mistake trigger this?

Hash-Matching and Child Exploitation Material

Most platforms use hash-matching to identify apparent child exploitation material. A “hash” is essentially a digital fingerprint of a file that represents the file’s content. When a platform’s content review tools find a hash that matches a known CSAM file in a database, it triggers a human review. If the review confirms the content, it will trigger an account disablement and a report to NCMEC.

The Role of a Backup or Shared Folder

Cloud backups can lead to a CyberTipline report if a user’s backup includes files that are not readily available or known to the user but are still online. For example, if a user has backup photos from multiple years on their device, Google Photos and other storage services can automatically upload images to the cloud without the user manually uploading them. Similarly, an old cloud backup, a shared folder with another user, or even an automatically uploaded screenshot can trigger a platform’s CSAM review.

The Role of Mistaken Identification

There have been cases in which apparent CSAM triggered a wrongful account-disablement and subsequent federal criminal investigation; in several of these cases, the material in question was actually medical images of children. In medical imaging cases and other cases where the images are not CSAM, the medical professionals who uploaded them can establish their innocence. Even in cases involving a potential criminal charge, exonerating evidence can be available to protect individuals from liability.

The Importance of a Forensic Review

A known-CSAM hash match does not identify the individual responsible for uploading or controlling the file. While a known-CSAM hash match does constitute evidence of possession in the context of a CSAM investigation, a forensic review can determine whether the file is the result of a mistake.

During a forensic review, a computer crime defense attorney and his experts will examine metadata, timestamps, the access history, and signs of system malware or evidence of remote-access. Using a forensic review, counsel can uncover the circumstances of the files’ presence in an account or on a device, and this information can often reveal the truth in cases involving mistakes.

A hash match does not prove that the account holder viewed a child exploitation file. The file may have been the result of a system error, a malware infection, or unauthorized remote access by another individual. The user may not have even known that the file was present.

Who can I talk to, and do I need separate counsel?

Avoiding Witness Testimony

When facing a suspected CyberTipline report and potentially serious federal criminal investigation, avoid discussing the matter with anyone. Any information shared with an individual or company can become witness testimony if the person is contacted as a potential witness. This is true for family members, friends, acquaintances, and anyone else.

Consulting with a Lawyer

While speaking with others can create issues, speaking with a lawyer is generally confidential. The attorney-client privilege protects confidential legal consultations and communications, so any information you share with your Cybercrime defense lawyer will stay confidential.

This means you can be open about the facts of the situation without needing to worry about your statements later becoming evidence. If you are worried about criminal liability, your lawyer may be able to use this information to help build an effective defense.

Separate Counsel for Spouses

When dealing with the federal government, it is often necessary to retain separate counsel. When a spouse faces criminal charges or is under investigation, this can create several conflict-of-interest concerns. The ownership of the devices or files, the need for the innocent spouse to testify, the possibility of contested custody, and the scope of the legal services required can all necessitate separate representation. However, if the innocent spouse is facing allegations of knowing possession or distribution, then this becomes a critical issue.

Spousal Privilege

The privilege to refuse to testify about marital secrets in court (the marital-communications privilege) protects information learned from a spouse within a confidential relationship. According to the DOJ, “The marital communications privilege applies to confidential communications between spouses during the marriage regardless of whether the marriage is still intact at the time of the litigation.” It also applies, however, to “the conduct of a spouse, observations made about the spouse’s conduct, and communications made before the marriage.” Additionally, “communications that are not intended to be confidential, such as those made to relatives, friends, online, or otherwise published to the public, are not protected.”

Reporting Mandated Professionals

Depending on the nature of the information shared, therapists and pediatricians may have a legal duty under state law to report suspected child abuse or exploitation. Consult with an attorney before sharing any sensitive information with your healthcare providers.

Preparing to Meet with Counsel

When you meet with your attorney, have all of the following information readily available:

• Copy of the account disablement notice
• Email address(es) of the agent or agents you’ve been in contact with
• List of all devices your husband has had access to (computers, tablets, smartphones, gaming devices, external storage devices, etc.)
• List of any known and suspected internet accounts accessed by your husband
• List of any relevant dates and other pertinent information

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.