Does It Impact a Typical Defense via the Fourth Amendment?
The fight against child pornography in the digital age presents a complex challenge, forcing us to grapple with the balance between protecting vulnerable children and safeguarding fundamental constitutional rights. While the removal of online child pornography and the prosecution of its distributors are undeniably crucial, the methods employed raise important questions about the scope of the Fourth Amendment in an era of widespread digital surveillance.
The Fourth Amendment protects individuals from unreasonable government searches, but this protection traditionally applies only to government actions. Under the long-standing “Private Search Doctrine,” the government can utilize the fruits of private searches in investigations and prosecutions, regardless of how unreasonable those searches might be. This doctrine, however, was established in a time when private searches were largely isolated incidents performed by individuals.
Today, the landscape is vastly different. Companies like Google employ sophisticated, automated systems to monitor their users for illegal activity. Chief Justice John Roberts recognized this shift in 2018, acknowledging that “modern corporations are not typical witnesses…they are ever alert, and their memory is nearly infallible.” This raises a critical question: how does the Private Search Doctrine apply when private companies conduct pervasive, automated surveillance that directly feeds into government investigations?
The widespread availability of child pornography online demands effective countermeasures. Courts have readily approved extensive digital inspections conducted by private companies like Google, but caution is warranted. The surveillance technology used in these cases is systematized and ubiquitous, granting the government easy, constitutional, and often mandatory access to its output. The Private Search Doctrine, in its current form, is broader than ever before, making it imperative to re-evaluate whether its benefits outweigh the potential risks to individual privacy and constitutional rights.
The Google Search Engine: A Digital Gatekeeper
The fight against online child pornography often begins with technology like “hashing.” A “hash” is a unique string of numbers generated from the digital properties of a file. Think of it as a digital fingerprint: two identical images will have the same hash, while even a single-pixel difference will result in a different hash value. Hashing technology, developed in the late 2000s, has become a widespread tool in the tech industry for cheaply and reliably screening for illegal content.
Google employs a two-part process to screen files uploaded to its platforms. First, it scans the file’s properties and generates a hash. Then, it compares this hash to a database of hashes corresponding to known child pornography. A match indicates that the uploaded file is identical to an image that a Google employee has already reviewed and confirmed to be child pornography.
While Google’s hashing checkpoints are not legally mandated, the company has both ethical and commercial incentives to screen for child pornography. However, the moment its automated system flags a file as potential child pornography, Google incurs a legal obligation.
Under 18 U.S.C. § 2258A, Google and similar services are required to report any detected child pornography by submitting a “cybertip” containing identifying information about the account user. These reports are sent to the National Center for Missing and Exploited Children (NCMEC), a non-profit organization responsible for processing these reports.
In many cases, Google submits these cybertips automatically, without a human employee reviewing the flagged image. While the hash value of the files matched images previously identified as illicit, no individual at Google visually confirmed the content before the information was passed on to NCMEC.
At NCMEC, a worker conducts a more thorough investigation, using online sources to supplement the information provided by Google and further develop the report. Notably, like Google, NCMEC often does not open the actual files containing the suspected child pornography.
This process illustrates a critical point: the initial identification and reporting of potential child pornography is often entirely automated, based solely on a hash match without human review.
The information provided in these NCMEC reports is then often used to obtain warrants for further investigation, as seen in the example case. Based on the information in the NCMEC report, law enforcement obtained a warrant to search the individual’s Gmail account, which led to the discovery of more incriminating evidence. This, in turn, led to additional warrants to search his house and the devices found within.
The Private Search Doctrine: An Exception or a Loophole?
The Fourth Amendment protects individuals from unreasonable government searches in areas where they have a reasonable expectation of privacy. This means that, typically, the government needs a warrant to search someone’s emails, home, or electronic devices. However, the Private Search Doctrine creates an exception to this rule, allowing the government to use evidence obtained by private parties, even if those private parties have conducted searches that would be unconstitutional if performed by the government.
The rationale behind the Private Search Doctrine is straightforward: the Fourth Amendment applies only to government action. Therefore, if a private party conducts an unreasonable search, it does not constitute a government search and, consequently, does not violate the Fourth Amendment. Furthermore, once a private search has been conducted, any remaining expectation of privacy regarding the searched items is deemed unreasonable, allowing the government to review the results of the private search as long as it does not exceed the scope of the initial search.
However, the Private Search Doctrine is not without limitations. The Fourth Amendment protects against unreasonable government searches, not just searches conducted directly by government officials. This means that a search by a private party can still be deemed unconstitutional if it is “fairly attributable” to the government.
The Supreme Court last addressed the Private Search Doctrine in U.S. v. Jacobsen. In this case, FedEx employees discovered a suspicious white powder while inspecting a damaged package and alerted the police, who then tested the powder and identified it as cocaine. The Court ruled that the drug test did not exceed the scope of the FedEx inspection because it did not compromise any legitimate privacy interest: there is no legitimate private interest in possessing cocaine, and a negative test would not reveal any private information.
The Fourth Amendment in the Age of Automated Surveillance
The increasing reliance on automated systems for detecting and reporting illegal content raises serious concerns about the erosion of Fourth Amendment protections. While the fight against child pornography is undeniably important, we must consider whether the current application of the Private Search Doctrine allows for unchecked surveillance that undermines fundamental rights.
The key question is whether the government is indirectly encouraging or facilitating private searches to an extent that they become “fairly attributable” to the state. When companies like Google automatically scan and report user data to law enforcement based on automated algorithms, are they acting as mere private actors, or are they effectively extensions of the government’s law enforcement apparatus?
The implications of this shift are profound. If private companies are allowed to conduct widespread surveillance without the constraints of the Fourth Amendment, the government can effectively circumvent constitutional limitations by outsourcing its investigative work. This could lead to a chilling effect on free speech and expression, as individuals may be hesitant to engage in online activities for fear of being subjected to intrusive surveillance.
Moving forward, courts and policymakers must grapple with these complex issues to ensure that the fight against child pornography does not come at the expense of fundamental constitutional rights. This may require re-evaluating the scope of the Private Search Doctrine in the digital age, establishing clearer guidelines for private companies that engage in content screening, and ensuring greater transparency and accountability in the use of automated surveillance technologies.
By carefully considering these issues, we can strive to strike a balance between protecting vulnerable children and safeguarding the privacy and constitutional rights of all individuals in the digital age.
