United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM ORDER ADOPTING REPORT AND
L. Bunning United States District Judge
matter concerns the role of electronic service providers
(ESPs) in identifying and reporting images of child
pornography sent using their services and the
constitutionality of law enforcement's subsequent review
of those images. Defendant's Motion to Suppress two
images of apparent child pornography attached to an email in
his Google account is before the Court on the Report and
Recommendation (R&R) of Magistrate Judge Candace J.
Smith, who recommends that the Court deny the Motion. (Doc. #
41). Defendant has filed objections to the R&R (Doc. #
44), and the R&R and objections are now ripe for the
Court's review. For the reasons that follow, the
objections are overruled, and the motion to suppress is
9, 2015, someone using the Google email (Gmail) account
email@example.com uploaded two images as attachments to an
email. (Doc. # 33-2 at 3-4). Google's product abuse
detection system recognized those images as apparent child
pornography using its proprietary "hashing"
technology. (Doc. # 33-1 at ¶¶ 4-8, 10-13). Hashing
is "the process of taking an input data string [from an
electronic image, for example] and using a mathematical
function to generate a (usually smaller) output string."
Richard P. Salgado, Fourth Amendment Search and the Power
of the Hash, 119 Harv. L. Rev. F. 38, 38-39 (2005). The
output string, called the hash value, is a "digital
fingerprint" shared by any duplicate of the input data
string. (Doc. # 33-1 at ¶ 4). Hashing is not unique to
images of child pornography-the process can be used to derive
hash values for many different kinds of data sets,
"including the contents of a DVD, USB drive, or an
entire hard drive." Salgado, supra, at 39.
Importantly, hash values are uniquely associated with the
input data, meaning that "if an unknown file has a hash
value identical to that of another known file, then you know
that the first file is the same as the second."
Id. at 39-40; see also Doc. # 33-1 at
has been using its proprietary hashing technology since 2008
to identify "confirmed child sexual abuse images."
(Doc. # 33-1 at ¶¶ 4-8). After an image of child
sexual abuse is viewed "by at least one Google employee,
" the image "is given a digital fingerprint
(‘hash')" and is "added to [Google's]
repository of hashes of apparent child pornography as defined
in 18 U.S.C. § 2256." Id. at ¶ 4.
Although the company also receives tips from users who
"flag suspicious content, " Google confirms that
"[n]o hash is added to [its] repository without the
corresponding image first having been visually confirmed by a
Google employee to be apparent child pornography."
Id. at ¶ 5.
Google "encounters a hash that matches a hash of a known
child sexual abuse image, " it does one of two things.
Id. at ¶ 5. In some cases, Google does not view
the image again, but instead automatically reports the user
to the National Center for Missing and Exploited Children
(NCMEC), a non-profit organization authorized by Congress to
"operate a cyber tipline to provide [ESPs] an effective
means of reporting . . . child pornography."
Id.; 42 U.S.C. § 5773(b)(1)(P). "In other
cases, Google undertakes a manual, human review, to confirm
that the image contains apparent child pornography before
reporting it to NCMEC." Id. Google is required
by law to report apparent child pornography to NCMEC through
the CyberTipline when it becomes aware of it. 18 U.S.C.
case, when Google's product abuse detection system
identified two images in firstname.lastname@example.org's email
account as having hash values matching hash values contained
in Google's repository of apparent child pornography,
Google "submitted an ‘automatic report' to
NCMEC" in compliance with its reporting obligations.
(Doc. # 41 at 2 n.2). A Google employee did not re-view the
images or the content of the email before submitting the
report to NCMEC. (Doc. # 33-1 at ¶ 11). However, Google
did provide NCMEC with "the email address used, the IP
address associated with the email in question, classification
of the images [‘A1' under the industry
classification system, meaning the image contained a
depiction of a prepubescent minor engaged in a sexual act],
the file names listed with the images and the two uploaded
image files." (Doc. # 41 at 3).
receiving the images, NCMEC's staff "did not open or
view the two uploaded files contained in the report."
Id. Instead, NCMEC "located publicly available
social network profiles" associated with the email
account, verified the IP address reported by Google, and
learned it to be associated with a Time Warner Cable account
having a potential geographic location of Fort Mitchell,
Kentucky." Id. That information was sent to the
Kentucky State Police and the Kenton County Police
Aaron Schihl of the KCPD received NCMEC's CyberTipline
report on August 13, 2015. Id. at 4. "Detective
Schihl opened the attachments and viewed the images, which he
confirmed to be child pornography." Id. He
sought a grand jury subpoena for the subscriber information
for the Time Warner account and then sought and obtained a
search warrant for the contents of the email@example.com
account. Id. Detective Schihl then obtained search
warrants for Defendant's home and the electronic devices
seized from his home, which yielded additional evidence of
"receipt, possession, and distribution of child
Defendant seeks to suppress all evidence obtained by
Detective Schihl, arguing that both Google's initial
search and Detective Schihl's subsequent search violated
the Fourth Amendment. In her R&R, Magistrate Judge Smith
concluded that Google's initial review of the files did
not implicate the Fourth Amendment because Google is a
private actor, not a government agent. She also concluded
that Detective Schihl's actions in viewing the images did
not implicate the Fourth Amendment because his actions did
not exceed the scope of the prior private search by Google.
objections, which the Court reviews de novo,
Defendant makes three specific arguments. First, he argues
that Google is a government actor because of its "close
relationship and collaborative crime fighting efforts"
with NCMEC, which the R&R assumes without deciding is a
government actor. (Doc. # 44 at 2). As a result, Defendant
argues, the fruits of Google's warrantless search should
be suppressed. Second, Defendant argues that, even if Google
is not a government actor, Detective Schihl's subsequent
review of the images exceeded Google's private search,
meaning that the detective violated the Fourth Amendment
because Defendant had a reasonable interest in the privacy of
his email attachments. Finally, Defendant argues that
Detective Schihl's actions were a search pursuant to
traditional trespass doctrine because the email attachments
were sealed virtual containers.
reasons set forth herein, the Court finds that
Defendant's arguments are unavailing,
overrules his objections, and
adopts Magistrate Judge Smith's R&R
as the Opinion of the Court.
Google is not a government actor.
first objection is to Magistrate Judge Smith's conclusion
that Google is not a government actor. (Doc. # 44 at 2-4).
Whether Google is a government actor is significant because
the Fourth Amendment protects individuals from
"unreasonable searches and seizures" by the
government, not private entities. U.S. Const. amend. IV.
Indeed, the Fourth Amendment "is wholly
inapplicable" to searches and seizures by "a
private individual not acting as an agent of the Government
or with the participation or knowledge of any governmental
official." United States v. Jacobsen, 466 U.S.
109, 113-14 (1984) (internal quotation marks omitted).
Sixth Circuit uses a two-part test to determine whether a
private entity is a government agent for the purposes of the
Fourth Amendment. "In the context of a search, the
defendant must demonstrate two facts: (1) Law enforcement
‘instigated, encouraged or participated in the
search' and (2) the individual ‘engaged in the
search with the intent of assisting the police in their
investigative efforts.'" United States v.
Hardin, 539 F.3d 404, 419 (6th Cir. 2008) (quoting
United States v. Lambert, 771 F.2d 83, 89 (6th Cir.
1985)). If the defendant cannot show both of these facts, the
private actor is not a government agent. Here, Magistrate