United States v. Wilson
| Decision Date | 21 September 2021 |
| Docket Number | No. 18-50440,18-50440 |
| Citation | 13 F.4th 961 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luke Noel WILSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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 , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (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, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) ; Walter v. United States , 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) ; United States v. Jacobsen , 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (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, 100 S.Ct. 2395 ; Jacobsen , 466 U.S. at 113–14, 104 S.Ct. 1652. 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 the record.
On June 4, 2015, Google, using its propriety technology, "became aware" that Wilson had attached to emails in his email account—which may or may not have been sent—four files that included apparent child pornography. United States v. Wilson , No. 3:15-cr-02838-GPC, 2017 WL 2733879, at *3 (S.D. Cal. June 26, 2017). In compliance with its reporting obligations, Google automatically generated and sent an electronic CyberTipline report to NCMEC. The CyberTipline report included Wilson's four email attachments. According to the Google manager's declaration, "a Google employee did not view the images ... concurrently to submitting the report to NCMEC." The CyberTipline report did specify that Google had classified each of Wilson's four email attachments as "A1" under an industry classification standard for "content [which] contain[s] a depiction of a prepubescent minor engaged in a sexual act."
Google's report included Wilson's email address, secondary email address, and IP addresses. NCMEC supplemented Google's report with geolocation information associated with Wilson's IP addresses, but did "not open[ ] or view[ ] any uploaded files submitted with this report."
NCMEC then forwarded the CyberTip to the San Diego Internet Crimes Against Children Task Force ("ICAC"). Agent Thompson, a member of the San Diego ICAC, received the report. 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.3
After Agent Thompson looked at Wilson's four email attachments, he applied for a search warrant of Wilson's email account. His affidavit asserted that probable cause for the warrant was based on two facts: first, that "Google became aware of four (4) image files depicting suspected child pornography;" and second, that he had "reviewed the four (4) images reported by Google to NCMEC and determined they depict child pornography." In support of his own child pornography assessment, he included in the warrant application detailed "descriptions of each of these images." The affidavit did not include the fact that Google had originally classified the images as "A1" or provide any detail about how Google had either classified or later automatically identified Wilson's images as apparent child pornography.
On the basis of the application and affidavit submitted by Agent Thompson, a magistrate judge issued a search warrant for Wilson's email account. When Agent Thompson executed the warrant, he discovered numerous email exchanges in which Wilson received and sent images and video files of alleged child pornography and in which Wilson offered to pay for the creation of child pornography.
Agent Thompson then obtained a search warrant for Wilson's residence. On executing the warrant, law enforcement officers found and seized several electronic devices that contained evidence of child pornography. One officer observed a backpack being tossed over Wilson's balcony at the time officers were knocking on Wilson's door and announcing their presence. Wilson's checkbook and a thumb drive containing thousands of images of child pornography—including the four images reported by Google—were found in the backpack.
Wilson filed a motion to suppress all evidence seized from his email account and residence, arguing that Agent Thompson's review of his email attachments without a warrant was impermissible under the Fourth Amendment. Relying principally on Jacobsen , 466 U.S. 109, 104 S.Ct. 1652, and United States v. Tosti , 733 F.3d 816 (9th Cir. 2013), the government...
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