Feb. 24, 2026 – Google’s scan of four files that its employee confirmed contained child sexual abuse material (CSAM) operated outside of the Fourth Amendment as a private search, the Wisconsin Supreme Court unanimously decided today in State v. Rauch Sharak, 2026 WI 4.

“Google scanned and viewed Rauch Sharak’s files on its own. It had a business reason to do so. Law enforcement became involved only after Google submitted a CyberTip,” summarized Justice Janet C. Protasiewicz, who authored the opinion.

“And even though federal statutes may encourage these searches, they are not enough to make Google an instrument or agent of the government, especially considering the disclaimer in 18 U.S.C. § 2258A(f)(3).”

The case is the second this year in which the Supreme Court decided whether electronic service provider (ESP) scans of a user’s files constituted a search under the Fourth Amendment.

State v. Gasper, 2026 WI 3, released Jan. 14, differed in t​hat Snapchat – under its user agreement and policies – only digitally scanned the files before it sent them to the National Center for Missing and Exploited Children (NCMEC), whose confirming scan resulted in Wisconsin law enforcement viewing the files.

A 5-2 court held in Gasper that the investigators – the first human eyes to view the videos – did not exceed the scope of Snapchat’s digital private search, permitting law enforcement’s warrantless search.

Google a Government Agent?

Google scans user content for known files of CSAM and flags the files for review. In August 2021, Google found four files of potential CSAM.

A Google employee confirmed the digital scan revealed CSAM.

Google submitted a CyberTip to NCMEC with the four files. NCMEC forwarded the tip to the Wisconsin Department of Justice.

A subpoena to the telecommunication company tied the Internet address to a residence in Jefferson County.

After viewing the files without a warrant, a sheriff’s detective obtained a search warrant for Andreas W. Rauch Sharak’s home and devices.

Law enforcement found CSAM on Rauch Sharak’s phone. He was charged with 15 counts of possession of child pornography.

Rauch Sharak moved the Circuit Court to suppress the evidence. He argued that “Google acted as an instrument or agent of the government,” and its search violated the Fourth Amendment.

A “constellation of federal statutes surrounding CSAM reporting and liability for internet content” made Google a government agent, he explained.

The State sought protection by arguing that terms of service precluded a reasonable expectation of privacy and the government’s search didn’t exceed Google’s private search: a warrant wasn’t necessary.

The Circuit Court denied Rauch Sharak’s motion.

The case reached the Supreme Court after the Court of Appeals certified three questions, only one of which determined the Supreme Court’s conclusion.

Two Key Cases

The critical question before the Supreme Court asked whether Google’s scan and review of Rauch Sharak’s files was a government search, requiring a warrant, or a private search.

The Fourth Amendment prohibiting unreasonable searches limits only government action. The defendant bears the burden to prove a search done by a private entity was, in fact, a government search.

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), guided the Supreme Court before considering Wisconsin precedent.

Skinner involved Federal Railroad Administration regulations requiring intoxication testing of railroad employees.

These rules a railroad couldn’t negotiate away, preempted contrary state laws, and required employee compliance – factors that the U.S. Supreme Court equated to government “encouragement, endorsement, and participation.”

This degree of participation made the searches by railroads a government search under the Fourth Amendment.

State v. Payano-Roman, 2006 WI 47, “adopted Skinner’s totality of the circumstances test,” the Wisconsin decision explained.

Payano-Roman listed three requirements for a private search, the decision said. In addition, if the search “is a ‘joint endeavor’ between private and government actors,” the “search may be a government search.”

In Payano-Roman, law enforcement assisted the medical team to administer laxatives to the defendant to pass a baggie of heroin that he had swallowed upon arrest.

This “joint endeavor” with a “dual purpose,” both medical and law enforcement, the Supreme Court held, was a government search.

Rauch Sharak argued that Payano-Roman created a three-factor test to determine whether a search was private.

The Supreme Court clarified that the three considerations, “whether the police initiate, encourage, or participate in the search; the private actor’s purpose; and whether the search was a joint endeavor,” merely demonstrate the totality of the circumstances.

“[N]o one consideration is dispositive,” the decision explained.

‘In Good Company’

In applying the two cases, the Supreme Court pointed out that the government wasn’t a part of the Google search.

Wisconsin law enforcement became involved only after receiving the CyberTip.

As a service provider, “Google had a business reason to complete this search” – to ensure that customers had “a good experience using its products,” the decision said.

This purpose is “independent of any desire to help law enforcement,” which is further evidence that Google was not acting at the behest of government when Google searched the files.

But Rauch Sharak argued that the numerous statutes governing ESPs and CSAM push Google to conduct the searches, making Google a government agent.

The first of those statutes that the Supreme Court evaluated, 18 U.S.C. section 2258A, regulates CSAM reporting, but the statute also says that “‘[n]othing in this section shall be construed to require a provider to … affirmatively search, screen, or scan for’ CSAM.”

“Many federal courts” – and the Supreme Court cited five U.S. Court of Appeals decisions – “have relied on that disclaimer in determining that” that statute “does not turn ESPs into government agents.”

Similarly, 47 U.S.C. section 230 governing “liability for online content and for ESPs who screen or block user content” also states, “[n]o provider … shall be held liable on account of … any action voluntarily taken in good faith” restricting material such as CSAM.

Rauch Sharak found this immunity the result of ESPs statutorily moderating content, enforced by liability for not scanning for CSAM.

The Supreme Court found that the statute didn’t “require, reward, or incentivize scanning for CSAM in the first place” – contrary to the mandatory requirements that fueled the government search in Skinner.

These conclusions put Wisconsin “in good company,” the decision said.

Consistent with decisions in four U.S. Court of Appeals circuits, including the Seventh Circuit, and two states, including Minnesota, the Supreme Court said, “[s]eemingly without exception, federal circuit courts and other state supreme courts have held that ESPs like Google are private actors when searching for CSAM on their platforms.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.