CA9: Police exceeded Google’s private search of email

Google viewed defendant’s email attachments and reported child pornography, but when police got their hands on it, they exceeded the private search. United States v. Wilson, 2021 U.S. App. LEXIS 28569 (9th Cir. Sept. 21, 2021):

The panel held that the government did not meet its burden to prove that the officer’s warrantless search was justified by the private search exception to the Fourth Amendment’s warrant requirement. The panel wrote that both as to the information the government obtained and the additional privacy interests implicated, the government’s actions here exceed the limits of the private search exception as delineated in Walter and Jacobsen and their progeny. First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute the defendant. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed the defendant’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of the defendant’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated the defendant’s expectation of privacy in his images, as Fourth Amendment rights are personal. The panel concluded that the officer therefore violated the defendant’s Fourth Amendment right to be free from unreasonable searches when he examined the defendant’s email attachments without a warrant.