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United States v. Miller

United States District Court, E.D. Kentucky, Northern Division

June 23, 2017



          David L. Bunning United States District Judge

         I. Introduction

         This 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 denied.

         II. Factual Background

         On July 9, 2015, someone using the Google email (Gmail) account 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 ¶ 4.

         Google 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.

         When 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. § 2258A.

         In this case, when Google's product abuse detection system identified two images in'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).

         Upon 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 Department. Id.

         Detective 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 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 pornography." Id.

         Now, 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.

         In his 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.

         For the 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.

         III. Analysis

         A. Google is not a government actor.

         Defendant's 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).

         The 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 ...

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