Private Search Doctrine Creates Court Split Over Child Pornography Investigative Techniques
Recently, criminal investigations for child pornography offenses have risen sharply in both state and federal courts.
Normally, an alleged child porn case begins with an anonymous online tip to police from a peer-to-peer network or social media.
Based on the information received, federal law enforcement is often able to obtain a search warrant from a judge and execute it at someone's home and office.
During the search, government agents will frequently seize illegal images and videos depicting minors engaged in sexual activity, which will lead to felony charges being filed by a federal prosecutor.
If the defendant is convicted of federal child pornography-related charges, the penalties are harsh, including time in federal prison and lifetime registration as a sex offender.
Court Reverses Conviction for Distribution of Child Porn
In the case of United States v. Wilson, 18-50440 (9th Cir. Sep. 21, 2021), the 9th Circuit determined that the private search exception to the Fourth Amendment was not applicable.
Thus, the protections afforded by the United States Constitution against unreasonable search and seizure were violated, where a search warrant was based on a tip to law enforcement alleging the defendant had child pornography.
The criminal investigation into Wilson's online activity began when Google made a report to the National Center for Missing and Exploited Children (NCMEC), per federal law, that he uploaded a few images of alleged child porn as an email attachment.
This child porn case began to turn when it became clear that there were no employees at Google who had actually opened his email attachments to observe any illegal images, rather there was an automated process used called “hash matching.”
Under this system, it will identify unique “hash values” of an image, which are a lengthy series of numbers and letters that are somewhat similar to a fingerprint.
The system then compares the information to a database of other “hash values” that had been reported as child pornography.
The employee at NCMEC who had received and reviewed Google's report sent the email attachment to law enforcement without actually opening the images to ensure they were illegal child porn.
The law enforcement officer then downloaded and viewed the email attachment that was sent to them without first securing a warrant.
Next, the law enforcement officer applied for warrants in court to search Wilson's email account and his home, where he described the contents within the email attachment in the application and the legally required probable cause affidavit.
Court's Review of the Fourth Amendment Implications
To properly analyze the Fourth Amendment implications of viewing the email attachments of images without a warrant, the 9th Circuit first took a close look at the top precedents that outline the private search doctrine.
The Fourth Amendment guarantees to protect people from government actors, not private ones as described in Burdeau v. McDowell, 256 U.S. 465 (1921).
Federal courts have already dealt with situations where a private party searches someone's person or property in a manner that would have been a violation of the Fourth Amendment rights if the search was conducted by a state actor.
Under the “private search doctrine,” if a private party provides evidence to the government “on their own accord, it's not incumbent on the police to avert their eyes,” as described under Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971).
Walter v. the United States 1980 – Case of Mistaken Package Delivery
Walter v. United States, 447 U.S. 649 (1980), was a case dealing with the mistaken delivery to a wrong recipient of a box containing obscene films.
After receipt, rather than returning the box to the company who delivered it, they opened the box and saw the sexual descriptions written on the film boxes within the package, then reported it to the Federal Bureau of Investigation (FBI).
The FBI then decided to seize the film boxes and actually viewed one of the films to confirm illegal child porn before they obtained a warrant from a judge.
The United States Supreme Court reviewed the case and determined that the viewing of the films by law enforcement was a violation of the defendant's Fourth Amendment rights, based on several factors:
- The law enforcement agents' primary reason for viewing the films was to determine if a crime had occurred;
- While the labels on the film boxes provided initial probable cause, a further investigation was needed to get evidence that was later used at trial;
- The FBI expanded the search of a private actor because the person who mistakenly received the package did not actually view the films.
The court determined that while the private search did somewhat violate Walter's privacy, the actual viewing of the films in the package was a further intrusion.
It should be noted, however, the dissenting justices would have found there were no Fourth Amendment violations because the contents of the containers were obvious due to labeling that viewing the films inside didn't let law enforcement anything they did not already know by reading the labels.
Search Exceeded the Scope of Private Search
In reviewing the details of the warrantless viewing of the images by law enforcement in Wilson, the 9th Circuit made two crucial decisions based on Walter:
- First, the government search did exceed the scope of the private search due to the fact it allowed them to learn new crucial information that was relied upon in the search warrant application and trial;
- Second, the government search did also expand the scope of the private search due to the fact they viewed Wilson's email attachments, even though a third party had not, which did create further intrusion in his privacy.
Many arguments should be noted from the government that was rejected by the 9th Circuit.
First, the government made an argument that when law enforcement viewed the images, they didn't learn anything new due to the fact Google already classified the images as child pornography through the automated hash matching process.
This argument was rejected because nobody at Google could specifically describe the images, but rather they simply used the hash values which categorized them as contraband images.
They concluded this system gave law enforcement less information than the video box labels in the Walter case.
On the issue of the degree of invasion of Wilson's privacy, the court rejected the government's argument that his expectation of privacy was already violated once Google scanned the images with their hash matching technology.
The court stated that no Google employee viewed his files before the law enforcement agencies did, thus expanding expanded the scope of the search.
Therefore, the 9th Circuit distinguished its prior holding in United States v. Tosti, 733 F.3d 816 (9th Cir. 2013), where a private party showed police thumbnails of images found on a defendant's laptop that looked like child pornography.
Neither enlarging the thumbnails nor reviewing the folder with the images expanded the scope of the prior private search due to the fact law enforcement didn't learn anything new through their actions.
9th Circuit Addressed Decisions Made by Other Circuit Courts
Finally, the 9th Circuit did address the review of the 5th and 6th Circuits, which upheld similar government searches based on NCMEC hash-matching tips.
The 5th Circuit in United States v. Reddick, 900 F.3d 636 (5th Cir. 2018), determined the subsequent visual review of the hash-matched images confirmed information already known by law enforcement.
The 9th Circuit explained that opening the images provided extensive details about the contents of the images viewed by the agent in Wilson.
The 6th Circuit also upheld a similar search on different grounds in United States v. Miller, 982 F.3d 412 (6th Cir. 2020), but they focused on the technological reliability of the hash matching itself.
However, the 9th Circuit determined that this impermissibly shifted the burden to the defendant to demonstrate the hash match was unreliable to show a Fourth Amendment violation.
The court said that the reliability of the hash matching procedure might well create sufficient probable cause to obtain a warrant based on a tip, but it can't obviate the need to get a warrant before executing a warrantless search by opening the image files to confirm the contents.
Defending State and Federal Child Pornography Cases
National Center for Missing and Exploited Children (NCMEC) tips that are predicated on private electronic service provider hash matching are common in the prosecution of state and federal child pornography cases.
As noted above, Wilson creates a new potential challenge for defendants whose electronic files were viewed by law enforcement before they legally obtain a warrant.
At Eisner Gorin LLP, our criminal defense law firm specializes in defending people who have been charged with child pornography in state and federal courts.
We are closely reviewing the probable cause declarations in search warrant cases in the Wilson decision discussed above.
Due to the importance of the issue and circuit court split decision, it seems likely that the United States Supreme Court will also review the private search doctrine case in the future to clarify the use of new technologies in this era of internet crime investigations.
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