## Facts

- Yahoo! operated a photo-sharing service in which users uploaded and stored images in online albums tied to individual accounts.
- Yahoo! received anonymous tips that certain user accounts contained child pornography.
- Yahoo! personnel inspected the flagged accounts, identified images they believed to be child pornography, preserved the material, and generated reports describing the accounts, images, and associated technical data (including IP addresses).
- Yahoo! submitted CyberTipline reports to the National Center for Missing and Exploited Children (NCMEC), which forwarded the reports to law enforcement in Maine.
- Investigators traced relevant account and IP activity to James M. Cameron, a former Maine assistant attorney general.
- A later search of Cameron’s residence and computers produced additional evidence related to possession and distribution of child pornography.
- Cameron moved to dismiss the indictment (insufficiency and improper venue), suppress evidence (arguing Yahoo!/NCMEC functioned as government agents), and exclude certain evidence on Confrontation Clause grounds; the district court denied the motions.
- After a bench trial, Cameron was convicted on thirteen counts and sentenced to 192 months’ imprisonment.

## Issues

1. Whether admission of Yahoo!/NCMEC reports and related evidence violated the Sixth Amendment Confrontation Clause because the reports were testimonial and admitted without cross-examination.
2. Whether Yahoo!’s inspection of accounts and reporting to NCMEC and law enforcement constituted government action triggering Fourth Amendment limits.
3. Whether the indictment provided sufficient notice and whether venue in the District of Maine was proper.
4. Whether the district court properly calculated the number of images attributable to Cameron for sentencing.

## Decision

- The First Circuit held that admission of certain Yahoo!/NCMEC materials violated the Confrontation Clause because some reports were testimonial and were introduced without the declarants’ testimony.
- The court found the Confrontation Clause error harmless beyond a reasonable doubt as to Counts Six, Seven, Nine, Ten, Twelve, Thirteen, and Fifteen, and affirmed those convictions.
- The court found the error not harmless as to Counts One, Three, Four, Five, Eleven, and Fourteen, reversed those convictions, and remanded for further proceedings.
- The court rejected the Fourth Amendment challenge, holding Yahoo! did not act as a government agent because it acted independently and without government direction or control.
- The court affirmed the indictment’s sufficiency and the propriety of venue in Maine.
- The court remanded for resentencing on the surviving counts and for possible retrial on the reversed counts if the government chose to reprosecute.

## Legal Principles

- Testimonial statements may not be admitted against a criminal defendant unless the declarant testifies or the defendant had a prior opportunity for cross-examination.
- Records or reports created with a primary purpose of establishing or proving past events for potential criminal prosecution can be “testimonial” even when generated by private entities and transmitted through an intermediary.
- Confrontation Clause violations are subject to count-by-count harmless-error review; convictions may be affirmed where improperly admitted testimonial evidence is cumulative of other properly admitted proof.
- A private service provider’s search of its own systems does not trigger the Fourth Amendment when conducted independently, without government direction or control; subsequent governmental use remains subject to constitutional and evidentiary limits.
- An indictment is sufficient if it identifies the charged offenses and provides adequate notice; venue is proper where the charged conduct is sufficiently tied to the district.

## Conclusion

The First Circuit ruled that some Yahoo!/NCMEC CyberTipline-style reports were testimonial and their admission without cross-examination violated the Confrontation Clause, requiring reversal of several counts, while affirming other convictions where the error was harmless; it also held Yahoo!’s initial search was private (not state action), upheld the indictment and venue, and remanded for resentencing and potential retrial on the reversed counts.


United States v. Cameron, 699 F.3d 621 (1st Cir. 2012)