As the reader of this article may be aware, Google’s Gmail system monitors attachments for possible harmful matter (i.e., child pornography) being distributed. After all, Google does not want to be accused as aiding and abetting the distribution of child pornography by doing nothing to prevent such conduct.
When Google’s automated system identifies potential attachments as containing harmful matter, may police open such attachments without a warrant under the private search exception to the Fourth Amendment?
The Gist of this Article: The private search exception to the Fourth Amendment permits a private actor to conduct a search and then notify law enforcement of possible evidence of criminal activity. Law enforcement, however, are not then free to exceed the scope of the private actor’s search before seeking a warrant to investigate deeper.
The private search exception to the warrant requirement in the Fourth Amendment permits a private actor (as compared to a government actor) to search matter without a warrant and then alert a government agency of possible unlawful items. “It is then not incumbent upon the police to . . . avert their eyes.” Coolidge v. New Hampshire (1971) 403 U.S. 443, 489; see also Walter v. United States (1980) 447 U.S. 649 (no majority decision) and United States v. Jacobsen (1984) 466 U.S. 109 (containing a majority decision). The government’s search of such matter originally discovered by a private actor “excuses the government from compliance with the warrant requirements of the Fourth Amendment.” Jacobsen, supra, at 129-134.
To many, this exception is unsettling and seems ripe for misuse. It may seem like the private actor is acting as a de facto agent of the government.
Indeed, such concerns do impose limits that the private actor’s search be “on its own initiative” or “of her own accord.” Coolidge, supra, at 446, 486 (wife discovered husband’s shotgun and articles of clothing belonging to the suspect and provided these to police in a murder investigation).
In Walter, supra, a package of obscene films was mistakenly delivered to the wrong recipient. The recipient opened the external packaging and examined the boxes containing individual films. Id., at 651-652. Each box contained “suggestive drawings” on one side and “explicit descriptions of the contents” of the film on the other. Id. The recipient then notified the FBI, who then took possession of the boxes and screened one of the films without first obtaining a warrant. Id.
A majority of the justices in Walter agreed there had been a Fourth Amendment violation, as it was agreed that the FBI exceeded the scope of the private search, but they differed on what standard should be applied.
This background is important to better appreciate the ruling by the U.S. Ninth Circuit Court of Appeal in Pasadena for the case of United States v. Luke Noel Wilson. On June 4, 2015, Google, using its proprietary technology, “became aware” that Wilson had attached to his e-mails in his email account, which may or may not have been sent, four files that included apparent child pornography.
In compliance with its reporting obligations, Google automatically generated and sent an electronic CyberTipline report to the National Center for Missing and Exploited Children (“NCMEC”). According to Google, “a Google employee did not view the images . . . concurrently to submitting the report to NCMEC.” The report did not specify that Google had classified the report as A1 which is an industry standard for “content [which] contains a depiction of a prepubescent minor engaged in a sexual act.”
NCMEC then forwarded the report to the San Diego Internet Crimes Against Children Task Force (“ICAC”), Agent Thompson, a member of the San Diego ICAC. He followed San Diego ICAC procedure, which at the time called for inspecting the images without a warrant whether or not a Google employee had reviewed them.
After Thompson inspected the images, he applied for a search warrant of Wilson’s email account. His affidavit in support of his warrant stated, “Google became aware of four image files depicting suspected child pornography” and that he had reviewed the files and “determined that they depict child pornography.” A magistrate judge, based on Thompson’s affidavit, issued the warrant.
Thompson then dug into Wilson’s e-mail account and found thousands more images and videos of child pornography.
Wilson was then prosecuted for possession and transmitting child pornography. He filed a motion to suppress the evidence, arguing that Thompson’s review of his email attachments without a warrant exceeded the scope of the private search doctrine.
The U.S. District Court agreed with the prosecution that the search did not exceed the scope of the private search doctrine and denied the motion.
Wilson then appealed to the U.S. Ninth Circuit, which reversed the trial court, because the government search exceeded the search of Google because, through it, the San Diego ICAC learned critical added information to obtain the warrant to arrest and then prosecute Wilson. Google’s notice to NCMEC did not include information based on any search and Thompson’s affidavit included detailed descriptions that Google could not have known.
The citation for the United States Court of Appeal for Ninth Circuit ruling discussed above is United States v. Luke Noel Wilson (9th Cir., 2021) 13 F. 4th 961.
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