Appellate Court Finds Law Enforcement Violated Constitutional Rights with Warrantless Search of Email Containing Possible Child Pornography
The Second Circuit of Appeals recently found that law enforcement violated the 4th Amendment rights of an individual when they opened an email that was flagged for possible child sexual abuse materials without a warrant. Google, who flagged the material in this case, and other internet service providers are obligated to implement measures to try and flag any possible child sexual abuse materials and then report any images, videos, or other materials to the National Center for Missing and Exploitive Children (“NCMEC”) CyberTipline. The NCMEC then works with law enforcement agencies to investigate the materials and bring about charges. Service providers often have systems in place to flag certain exploitive materials via their “hash” which is akin to a digital fingerprint that will alert a system as to the presence of any known exploitive materials that have already been previously identified. While users typically agree to certain terms and conditions that allow providers to conduct such searches or implement such systems, the issue then emerges with what information is shared with government/law enforcement and to what extent they investigate the materials before acquiring a warrant. In the case at issue in the Second Circuit Court of Appeals, a man, Ralph Maher, was convicted of possessing child pornography after Google flagged his account for containing a hash of a previously flagged image, which was then sent to the NCMEC without anyone at Google actually reviewing the email that included the image. Once it was with law enforcement, but critically before they had obtained a warrant which they could have relatively easily done, law enforcement officials viewed the materials contained in the email with the flagged hash and confirmed it was child pornography, which Maher argued violated his 4th Amendment rights to be free of warrantless searches. The Second Circuit agreed with the Maher’s rationale that Google’s terms of service that allow them to review account for harmful materials does not extend to law enforcement to perform a more thorough investigation of flagged materials than Google itself performed. Unfortunately for Maher, the Court went further in its decision, ruling that the good faith exception of law enforcement stymies his sought-after relief of suppressing the materials at issue because law enforcement, “had a good faith basis to believe that no warrant was required.” Still, law enforcement should now be on notice that such conduct is unconstitutional in certain instances.
Recent Efforts to Modernize NCMEC by Federal Government Falls Short
Earlier this year, President Biden signed a bill that would increase the amount of time providers preserve flagged materials, from 90 days to up to a year, and increase the fines for providers if they don’t report suspected child pornography, from $150,000 to $850,000 for a first violation. These measures, while commendable, do not address several of the issues underlying the organization according to reporting from The Wall Street Journal and the Stanford Internet Observatory, which found that due to budget, staffing, and an outdated analogue system, only 5%-8% of reports lead to actual arrests. According to the Standford report, “NCMEC faces resource constraints and lower salaries, leading to difficulties in retaining personnel who are often poached by industry trust and safety teams. While there has been progress in report deconfliction… the pace of improvement has been considered slow.” This is particularly troubling with the proliferation of AI and other technology which makes sharing materials easier and more prolific, evident in the fact that there were 36 million reports of possible exploitive materials generated in 2023, up from 4,450 such reports when the CyberTipline was created in 1998. Having the staff to review such a high volume will remain an issue unless there are large changes to the organization, its structure, and funding. Additionally, as previously discussed, there remain legal challenges to the lengths to which law enforcement can use the tool without violating an individual’s constitutional rights. In any case, charges alleging the possession or dissemination of such materials are very serious offenses that are often punished to the full extent of the law when there is evidence or allegations of such behavior. Anyone accused of possessing illegal child pornographic materials should make sure they have experienced counsel who can ensure that their Fourth Amendment constitutional rights against unreasonable searches and seizures, or state constitutional rights to privacy, were not violated.