Google Search Algorithm Finding Child Pornography Challenged as Unconstitutional

On September 21, the U.S. Court of Appeals for the Ninth Circuit ruled that a warrantless search of email attachments that have been flagged by an automated system as child pornography violates the Fourth Amendment. In doing so, the court overturned the conviction of Luke Noel Wilson, finding that the evidence from his attachments should not have been admitted at his trial.

The Fourth Amendment to the U.S. Constitution gives people the right to be free from unreasonable searches by the Government, and the so-called exclusionary rule devised by the Supreme Court in Mapp v. Ohio prohibits the Government from using evidence it obtained in violation of that right in a criminal trial against the person who it wronged.  As a general rule, any search that is conducted without a warrant is per se “unreasonable” by constitutional standards, and any evidence collected from such a search is therefore inadmissible—but there are several exceptions.

One of these is the private search exception. Fully articulated by the Supreme Court in United States v. Jacobsen, this doctrine allows the Government to use the fruits of a warrantless search so long as that search was performed by a private party rather than by an agent of the Government. This exception extends even into cases where, in order to obtain the evidence, the Government itself has to repeat the search already performed by the private party. This is only true, however, if the Government search does not exceed the scope of the private one.

In Wilson’s case, a computer algorithm devised by Google reviewed his email attachments and judged them to be apparent child pornography. The files were then forwarded to law enforcement, who opened and viewed them. The court found that this Government viewing of the images was a new search that exceeded the scope of the private one, since no actual person at Google had previously viewed them.

In making this ruling, the Ninth Circuit departed from the approach taken by the Fifth and Sixth Circuits on the same issue. Those courts found that similar Government searches did not exceed the scope of the private search because Google’s algorithm was sufficiently reliable and because the files were opened merely to confirm the suspicion that they were flagged because they contained child pornography. Since this difference of opinion splits the federal Circuits, it is possible that the Supreme Court of the United States may soon decide to review this or a similar case to resolve the question of which approach is a more correct interpretation of the case law and the Constitution.

If you or someone you know is facing a case involving an electronic search, you need a seasoned federal attorney to help you challenge it. Our lawyers work tirelessly to fight such questionable Government tactics, and as a result, our firm has a long track record of successes in federal cases. For more information about how we can help in your case, contact us today.


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