Ninth Circuit's Interpretation Of Private Search Exception To The Fourth Amendment Contributes To "Growing Tension" Among Circuit Courts

• Published date: 04 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Trials & Appeals & Compensation
• Law Firm: Covington & Burling
• Author: Mr Jim Garland, Alexander Berengaut and Chloe Goodwin

Last week, the Ninth Circuit held in United States v. Wilson, No. 18-50440, 2021 WL 4270847, that a law enforcement officer violated a criminal defendant's Fourth Amendment rights when he opened images attached to the defendant's emails without a warrant, even though the images had previously been flagged as child sexual abuse materials ("CSAM") by Google's automated CSAM-detection software. The court based its ruling on the private search exception to the Fourth Amendment, which permits law enforcement to conduct a warrantless search only to the extent the search was previously conducted by a private party. Because no individual at Google actually opened and viewed the images flagged as CSAM, the court held that law enforcement "exceeded the scope of the antecedent private search," thereby "exceed[ing] the limits of the private search exception." Op. at 20-21.

Because the Fourth Amendment applies only to searches conducted by the government, "a private party may conduct a search that would be unconstitutional if conducted by the government." Op. at 13. If the private party later provides the fruit of that search to the government, the private search doctrine permits the government to repeat the search without a warrant. In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court explained that a warrantless government search may be permissible under the private search doctrine if the search does not exceed the scope of an antecedent private search, in that the government "learn[s] nothing that had not previously been learned during the private search." Id. at 120.

Circuit courts are split on how to apply the private search doctrine in the context of CSAM reporting: Federal law requires an electronic communication service provider with actual knowledge of a violation of child pornography laws to file a report with the National Center for Missing and Exploited Children ("NCMEC"), which forwards the report to law enforcement. See 18 U.S.C. ' 2258A. Although providers are not required proactively to "search, screen, or scan" for CSAM on their platforms, id. ' 2258A(f)(3), many choose to do so using automated CSAM-detection software.

Here, as the Ninth Circuit explained, Google's report to NCMEC 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," and NCMEC forwarded the report to the San Diego Internet Crimes Against...