By: Alexa Sullivan
The warrantless search of a defendant’s email attachments after an automated system sent the emails to law enforcement is in violation of the Fourth Amendment, according to the most recent ruling from the Ninth Circuit Court of Appeals. In United States v. Wilson, the Ninth Circuit ruled in favor of defendant Luke Noel Wilson, who is serving a 45-years-to-life state sentence in California for crimes concerning child sexual assault material (“CSAM”). In this case, Google’s automated “Cyber Tip” system located and flagged four images attached to one of his emails. Without having a Google employee look at the images attached to Wilson’s flagged emails, Google subsequently forwarded the emails to the National Center for Missing and Exploited Children (“NCEMC”). NCEMC then forwarded the emails to San Diego law enforcement, where an agent opened and viewed the images without a warrant, confirming the images were CSAM. Wilson filed a motion to suppress the four images in federal court in addition to evidence later seized from his online accounts and his home. He argued that the evidence was obtained in violation of his Fourth Amendment rights, as he was subjected to an unconstitutional warrantless search.
An individual citizen’s right to privacy, including digital privacy, is largely protected by the Fourth Amendment. Under this amendment, an individual can assert their right against governmental intrusion if they have an actual, subjective expectation of privacy that society finds reasonable. The Fourth Amendment acts as a restriction on the government and does not apply to the actions of private parties. It follows that private actors, such as Google, are permitted to access user data with significantly less restrictions than governmental entities.
If a private party, like a tech company, voluntarily submits user data information to the Government, the Fourth Amendment is generally not implicated. This concept, otherwise known as the private search doctrine, holds that law enforcement does not need a warrant to search an individual’s data if a private party has already searched it and law enforcement does not expand the search beyond its original scope. Currently, there is no legislative mandate for tech companies to affirmatively search for illegal content, so these companies are only required to make reports once they are aware of the material. Under federal law, the possession and distribution of CSAM or child pornography is prohibited. It is also a requirement that any tech company with actual knowledge or awareness that a user is in possession of this illegal material or has distributed it must report that individual to NCMEC.
In this case, the lower court held that law enforcement’s opening and viewing of Wilson’s email attachment images was not an expansion of the original search performed by Google’s automated system in “any meaningful way.” The court reasoned that it was almost a certainty that the image attachments from Wilson’s email were identical to the previously flagged CSAM, and therefore only conveyed illegal content. On appeal, the Ninth Circuit disagreed and held that the opening of these emails and the images attached expanded the original search, allowing the government to learn new, vital information. The new information derived from opening the attached images allowed the government to obtain a warrant to search Wilson’s home and ultimately prosecute him. This opinion shows that automated systems utilized by big tech companies, such as “Cyber Tip”, to detect CSAM online “cannot automate away the requirements of the Constitution,” including Fourth Amendment protections.
There has been a growing tension among federal courts over how to apply the Fourth Amendment to government searches of reported CSAM images flagged by private companies like Google. Advocates for a more limited application of the Fourth Amendment argue there can be no reasonable expectation of privacy in information when it is stored on electronic devices that a third party is legally able to access. The legal split, stretching across state courts as well, involves privacy advocates arguing that people have a privacy expectation in digital contents such as their emails. This decision further highlights the challenges courts continue to face concerning privacy protections for individual citizens when law enforcement conducts searches of their digital communications. The Ninth Circuit came to this precedent-setting conclusion, further ensuring that individuals have robust Fourth Amendment protections as the digital era continues to progress.
Student Bio: Alexa Sullivan is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Alexa received a Bachelor of Science Degree in Biology and with a minor in Business from Loyola Maryland University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
