The Private Search Doctrine and Computerized Hashing Technology

• The Private Search Doctrine
• Google’s Computerized Hashing Technology
• Child Pornography and the Internet

A law enforcement officer opening a pornography suspect’s e-mail attachments, without a search warrant, is an illegal search.  The fact that an electronic communication service provider has already concluded that the e-mail attachment contains child pornography, determined via an electronic hashing system, without having actually viewed the e-mail attachments, does not make the subsequent law enforcement search lawful. In such a case, the “private search doctrine” is inapplicable.

Defendant Luke Noel Wilson was into child pornography, as evidenced by his habit of uploading images of young girls in sexually compromising situations into his Google Gmail account as e-mail attachments.  Four instances of child pornography were discovered by Google in defendant’s e-mails, resulting in his federal prosecution in this case.  (He was also prosecuted and convicted in state court; see People v. Wilson (Oct. 21, 2020) 56 Cal.App.5th 128 [Review denied by the California Supreme Court at 2021 Cal. LEXIS 485; Jan. 20, 2021], and “Note,” below.)  Although electronic communication service providers (aka; Internet Service Provider,” or “ISP”), such as Google, are not required by law to “affirmatively search, screen, or scan” for violations of federal child pornography laws, many do so anyway as a means of “reduc(ing) . . . and prevent(ing) the online sexual exploitation of children.”  Should an ISP discover child pornography sent through its system, however, that ISP is directed by federal law, “as soon as reasonably possible after obtaining actual knowledge” of “any facts or circumstances from which there is an apparent violation of . . . child ....