 The Wisconsin Supreme Court recently upheld the conviction of Andreas W. Rauch Sharak for possession of child pornography. This crime is contemptible – and we support every lawful means to apprehend and convict the vile people who traffic in such material. But it needs to be pointed out that in this case, the court and prosecutors sidestepped the need for a probable cause warrant, as required by the Fourth Amendment. In so doing, they inadvertently widened a loophole in the treatment of data held by third parties, from Google to Apple, from servers to the cloud. As a result, the privacy of law-abiding Americans and the security of our most personal and intimate data are now more vulnerable than ever. The Case Rauch Sharak’s conviction involves Google, which routinely flags files containing potential child sexual abuse material (CSAM) for the National Center for Missing & Exploited Children. If that non-profit organization deems files to contain child pornography, they are forwarded on to law enforcement. In this case, the files were referred to the Jefferson County Sheriff’s Office in Wisconsin, where a detective viewed them without a warrant. The detective then obtained a search warrant to search Rauch Sharak’s home and devices. This resulted in Rauch Sharak being charged with 15 counts of possession of child pornography. Wisconsin’s Ruling The state’s highest court upheld a circuit court’s conviction on the grounds that Google had not acted as “an instrument or agent of the government.” This distinction matters, because if Google was deemed a government actor, its searches would necessarily be subject to the Fourth Amendment’s requirement that law enforcement obtain a warrant based on individualized probable cause before conducting a search. Nor did the court believe that the detective needed to obtain a warrant to view the forwarded files. “In this case, we determine that law enforcement did not need a warrant before opening and viewing the files in the CyberTip because law enforcement’s search falls under the private search doctrine,” the Wisconsin Supreme Court held. “Under that doctrine, the government does not conduct a ‘search’ under the Fourth Amendment when it repeats a search by a private actor and stays within the scope of the private search.” The court also stated: “Seemingly without exception, federal circuit courts and other state supreme courts have held that ESPs [electronic service providers] like Google are private actors when searching for CSAM on their platforms.” We commend Google for its “zero tolerance” policy for CSAM in its terms of service. But when the government gets involved, so should the Fourth Amendment. PPSA’s Brief In our amicus brief before the Wisconsin Supreme Court, PPSA took issue with such “overbroad interpretations of the third-party doctrine.” The court overlooked a major exception to the private-actor theory – Carpenter v. United States (2018) – in which the U.S. Supreme Court unanimously held that obtaining a suspect’s historical cell-site data constituted a search under the Fourth Amendment. We told the court that “Carpenter recognized that the Fourth Amendment protects privacy interests that would have been recognized as reasonable at the time of the Founding, notwithstanding advances in technology that make encroachments upon such interests easier.” Like the postal systems of early America, the Founders would have easily understood that individuals maintain an expectation of privacy when entrusting personal communications or materials to third parties for storage or delivery. Today, however, it is nearly impossible to store private information without relying on third-party providers like Google, Apple, Amazon, and others. For users, the password-protected accounts of Google Photos would have established a subjective expectation of privacy. The evidence also clearly shows that when Google conducts automated searches, it may function less like a private actor and more like a deputized investigator. At least one court applied state law holding a third party that possesses CSAM-detection software may face liability if it fails to deploy it. Google – a heavily regulated company operating under significant legal pressure – thus begins to resemble a government partner, raising serious Fourth Amendment concerns. In the wake of this ruling, the government’s ability to compel private actors like Google to perform warrantless searches will only grow. Powers used today to catch CSAM crimes could be used tomorrow to open up our emails, texts, personal photos, and online searches to the government for any reason it chooses. According to the Wisconsin Supreme Court’s interpretation of the private search doctrine, if Google viewed your data, then the government can too. That means the Fourth Amendment becomes a dead letter for any data entrusted to a third party, i.e., nearly all data in our digital age. As lower courts continue to chip away at Carpenter, the Supreme Court has an opportunity in United States v. Chatrie to revisit these issues for the first time since Carpenter. We hope they decide to reaffirm the clear, bright constitutional line defining when digital searches conducted through private intermediaries become government action – and when Americans’ most personal data must be protected from unreasonable searches and seizures. Comments are closed.
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