United States v. Wilson
| Decision Date | 21 September 2021 |
| Docket Number | 18-50440 |
| Parties | United States of America, Plaintiff-Appellee, v. Luke Noel Wilson, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Argued and Submitted November 15, 2019
Appeal from the United States District Court for the Southern District of California No. 3:15-cr-02838-GPC-1 Gonzalo P Curiel, District Judge, Presiding.
Devin Burstein (argued), Warren & Burstein, San Diego California, for Defendant-Appellant.
Peter Ko (argued), Assistant United States Attorney; Helen H. Hong Chief, Appellate Section, Criminal Division; Robert S Brewer, Jr., United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.
Jennifer Lynch and Andrew Crocker, Electronic Frontier Foundation, San Francisco, California; Jennifer Stisa Granick, American Civil Liberties Union Foundation, San Francisco, California; Brett Max Kaufman and Nathan Freed Wessler, American Civil Liberties Union Foundation, New York, New York; for Amici Curiae Electronic Frontier Foundation and American Civil Liberties Union Foundation.
Marc Rotenberg, Alan Butler, and Megan Iorio, Electronic Privacy Information Center, Washington, D.C., for Amicus Curiae Electronic Privacy Information Center (EPIC).
Ryan T. Mrazik, Erin K. Earl, and Rachel A.S. Haney, Perkins Coie LLP, Seattle, Washington, for Amici Curiae Google LLC and Facebook, Inc.
Before: Marsha S. Berzon and Paul J. Watford, Circuit Judges, and Robert H. Whaley, [*] District Judge.
The panel vacated a conviction for possession and distribution of child pornography, reversed the district court's denial of a motion to suppress, and remanded for further proceedings in a case in which the panel addressed whether the government's warrantless search of the defendant's email attachments was justified by the private search exception to the Fourth Amendment.
As required by federal law, Google reported to the National Center for Missing and Exploited Children (NCMEC) that the defendant had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed the defendant's email attachments; its report was based on an automated assessment that the images the defendant uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent the defendant's email attachments to the San Diego Internet Crimes Against Children Task Force, where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both the defendant's email account and his home, describing the attachments in detail in the application.
The private search doctrine concerns circumstances in which a private party's intrusions would have constituted a search had the government conducted it and the material discovered by the private party then comes into the government's possession. Invoking the precept that when private parties provide evidence to the government on their own accord, it is not incumbent on the police to avert their eyes, the Supreme Court formalized the private search doctrine in Walter v. United States, 447 U.S. 649 (1980), which produced no majority decision, and United States v. Jacobson, 466 U.S. 109 (1984), which did.
The panel held that the government did not meet its burden to prove that the officer's warrantless search was justified by the private search exception to the Fourth Amendment's warrant requirement. The panel wrote that both as to the information the government obtained and the additional privacy interests implicated, the government's actions here exceed the limits of the private search exception as delineated in Walter and Jacobsen and their progeny. First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute the defendant. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed the defendant's email attachments even though no Google employee-or other person-had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of the defendant's images. And, even if they were duplicates, such viewing of others' digital communications would not have violated the defendant's expectation of privacy in his images, as Fourth Amendment rights are personal. The panel concluded that the officer therefore violated the defendant's Fourth Amendment right to be free from unreasonable searches when he examined the defendant's email attachments without a warrant.
We once again consider the application of the Fourth Amendment's warrant requirement to new forms of communication technology. See, e.g., United States v. Cano, 934 F.3d 1002 (9th Cir. 2019); cf. Carpenter v. United States, 138 S.Ct. 2206 (2018). "When confronting [such] concerns wrought by digital technology, th[e] [Supreme] Court [and this court] ha[ve] been careful not to uncritically extend existing precedents." Id. at 2222. Our question this time concerns the private search exception to the Fourth Amendment-specifically, the intersection between electronic communications providers' control over material on their own servers and the Fourth Amendment's restriction of warrantless searches and seizures, which limits only governmental action. See Burdeau v. McDowell, 256 U.S. 465 (1921); Walter v. United States, 447 U.S. 649 (1980); United States v. Jacobsen, 466 U.S. 109 (1984).
The events giving rise to Luke Wilson's conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilson's email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson's email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilson's email account and Wilson's home, describing the attachments in detail in the application.
Our question is whether the government's warrantless search of Wilson's email attachments was justified by the private search exception to the Fourth Amendment. See Walter, 447 U.S. at 655-56; Jacobsen, 466 U.S. at 113-14. For the reasons that follow, we hold that it was not. We therefore reverse the district court's denial of Wilson's motion to suppress and vacate Wilson's conviction.
Electronic communication service providers are not required "affirmatively [to] search, screen, or scan" for apparent violations on their platforms of federal child pornography laws. 18 U.S.C. §§ 2258A(f), 2258E. But "[i]n order to reduce . . . and . . . prevent the online sexual exploitation of children," such providers, including Google, are directed, "as soon as reasonably possible after obtaining actual knowledge" of "any facts or circumstances from which there is an apparent violation of . . . child pornography [statutes]," to "mak[e] a report of such facts or circumstances" to NCMEC. 18 U.S.C. § 2258A(a).[1]NCMEC then forwards what is known as a CyberTip to the appropriate law enforcement agency for possible investigation. Id. at §§ 2258A(a)(1)(B)(ii), (c).
According to a two-page declaration from a senior manager at Google, the company "independently and voluntarily take[s] steps to monitor and safeguard [its] platform," including using a "proprietary hashing technology" to identify apparent child pornography.[2]
As described in the record-vaguely, and with the gaps noted-the process works as follows:
First, a team of Google employees are "trained by counsel on the federal statutory definition of child pornography and how to recognize it." Neither the training materials themselves nor a description of their contents appear in or are attached to the Google manager's declaration.
Second, these employees "visually confirm[]" an image "to be apparent child pornography." According to an industry classification standard created by various electronic service providers, there are four industry categorizations: "A1" for a sex act involving a prepubescent minor; "A2" for a lascivious exhibition involving a prepubescent minor; "B1" for a sex act involving a pubescent minor; and "B2" for a lascivious exhibition involving a pubescent minor.
Third, "[e]ach offending image" judged to be "apparent child pornography as defined in 18 USC § 2256" is given a hash value, which is "added to [the] repository of hashes." As far as the record shows, Google "stores only the hash values" of images identified as apparent child pornography, not the actual images. The government does not represent otherwise.
Finally Google "[c]ompare[s] these hashes to hashes of content uploaded to [their] services." The exact manner in which hash values are assigned to either the original photographs or the ones deemed to replicate them is not described in the Google manager's declaration or anywhere else in...
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