Written By: Elliot Millerd-Taylor
“I wouldn’t want to slow the wheels of progress. But then, on the other hand, I wouldn’t want those wheels to run over my client in their unbridled haste.” [1]
In a set of recent decisions, courts in the Ninth and Tenth Circuit have held that as long as the government stays within the parameters of the intrusions you agree to in the Terms of Service (TOS) with an internet service provider there is no search subject to the warrant requirement or, in the alternative, a reasonable expectation of privacy. [2]
For example, in United States v. Wilson, the court denied a motion to suppress evidence implicating the defendant in the possession, distribution, and solicitation of child pornography because the government’s visual examination of the images turned over by Google did not “significantly expand” on the proprietary technology Google uses to search someone’s email. [3]
Facially, the district court’s decision comports with the majority of Fourth Amendment case law. However, this surface level appearance masks the troubling implications of the decision.
First, Google’s TOS for Gmail reserves the right to investigate suspected misconduct, review content, and remove or refuse to display content that violates policy. [4] In short, you are not obligated to use or be allowed to use the service if you break the law.
Second, 18 U.S.C. 2258(a) compels Google to turn over “actual knowledge of any facts or circumstances” that indicate a user is distributing, solicitating, or producing child pornography to the CyberTipline of the National Center for Missing and Exploited Children (NCMEC). This includes relevant identity, geographic, and historical reference material.
Finally, Google goes beyond 18 U.S.C. 2258(a)’s requirements. Google uses a proprietary hashing technology to identify possible violations which are then manually identified by trained employees who catalogue and assign a hash value to the image. Next, Google places this information into a server that matches the hash value to known media. Then, Google turns the information over to NCMEC. In short, Google searches a user’s email in a manner that would require a law enforcement office to procure a warrant. [5]
Where does this leave things?
As noted in Amicus Curae in Wilson, this potentially means that one will need to operate their own email server in order to maintain a reasonable expectation of privacy on the internet. [6] A ridiculous proposition, but it would not be the first time a Fourth Amendment case said facially or economically ridiculous and impracticable behavior was reasonable. [7]
Recent decisions and jurisprudence however, portend good omens. In Byrd v. United States, the court held that violating a signed contract which had provisions barring certain behavior did not eliminate the reasonable expectation of privacy the Fourth Amendment provides. In short, the court held you cannot sign away your rights or your reasonable expectations of privacy. [8]
Finally, the concern over third party or private searches in the internet age held in dissenting opinions regarding the Fourth Amendment. Most recently, Justice Gorsuch’s dissent in Carpenter v. United States now seem justified. [9] There may be five votes on the court to expand upon the Carpenter holding. [10] Justice Gorsuch noted that the Smith and Miller exceptions to the Katz test could have dramatic and deeply problematic implications for the Fourth Amendment in an era when the majority of American society conducts its business through electronic mediums. [11] In noting that even the reasonableness test leads to unreasonable results, Gorsuch’s dissent notes that the court’s case-by-case approach to the Fourth Amendment threatens the ability of the court to adequately address these new concerns with the Fourth Amendment. [12]
Much like the internet’s disruption of the American economy, it now seems that it provides challenges to the fundamental civil liberties of all Americans as frequently as, well, someone sending an email.
[1] Star Trek: Court Martial, (NBC Television Broadcast 1967).
[2] United States v. Wilson, 2017 U.S. Dist. Lexis 98432; see also United States v. Wolfenbarger, 2019 U.S. Dist. LEXIS 148822 (N.D. Cal. 2019); United States v. Ackerman, 296 F. Supp. 3d. 1267 (D. Kan. 2017); and United States v. Stratton, 229 F. Supp. 3d 1230 (D. Kan. 2017).
[3] United States v. Wilson, 2017 U.S. Dist. Lexis 98432 at 17-18. The first indictment was two counts under 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(b). A second indictment a month later charged defendant under 18 U.S.C. § 2251 (d)(1)(A), §2252 (a)(2), and § 2253 (a)-(b).
[4] Id. at 19-20.
[5] See United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010) (Kozinski, J., concurring) (“These and similar search tools should not be used without specific authorization in the warrant, and such permission should only be given if there is probable cause to believe that such files can be found on the electronic medium to be seized.”). A discussion of the limitations placed on the government’s use of hashing technology.
[6] Jennifer Lynch, Your Fourth Amendment Rights Should Not be Limited by Terms of Service, ELECTRONIC FRONTIER FOUNDATION (Sep. 27, 2019), https://www.eff.org/deeplinks/2019/04/your-fourth-amendment-rights-should-not-be-limited-terms-service. See also, Carol D. Leonning, Rosalind S. Helderman & Tom Hamburger, FBI Looking Into The Security of Hillary Clinton’s Private E-mail Setup, THE WASHINGTON POST (Sep. 27, 2019) (discussing as to why this is a bad idea – Secretary of State Hillary Clinton, George W. Bush administration, and the Trump administration), https://www.washingtonpost.com/politics/fbi-looks-into-security-of-clintons-private-e-mail-setup/2015/08/04/2bdd85ec-3aae-11e5-8e98-115a3cf7d7ae_story.html?noredirect=on&utm_term=.e7190be442d0. See also, Matt Apuzzo & Maggie Haberman, At Least 6 White House Advisors Used Private Email Addresses, THE NEW YORK TIMES (Sep. 27, 2019), https://www.nytimes.com/2017/09/25/us/politics/private-email-trump-kushner-bannon.html. See also, Nina Burleigh, The George W. Bush White House ‘Lost’ 22 Million Emails, NEWSWEEK MAGAZINE (Sep. 27, 2019), https://www.newsweek.com/2016/09/23/george-w-bush-white-house-lost-22-million-emails-497373.html.
[7] United States v. Carpenter, 138 S. Ct. 2206, 2266 (2018).
[8] Byrd v. United States, 138 S. Ct. 1518 (2018).
[9] Carpenter, 138 S. Ct. at 2261.
[10] Id.
[11] See Katz v. United States, 88 S. Ct. 507 (1967) (Harlan, J., concurring); Smith v. Maryland, 99 S. Ct. 2577 (1979); United States v. Miller, 96 S. Ct. 1619 (1976).
[12] United States v. Carpenter, 138 S. Ct. 2206, 2266 (2018) (Gorsuch, J., dissenting) (harbors particularly sharp opinions on the reasonableness of a police helicopter flying 400 feet above one’s backyard).
