The private search exception to the Fourth Amendment allows the government to receive information from a private party about another individual’s private information even if the government would not have legally been able to get that information on their own. In other words, if a private party sends the government information, the government need not “avert their eyes”. Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971). The Supreme Court codified the private search exception in the 1984 case United States v. Jacobson when the Court held that government searches that occur subsequent to private searches and remain within the scope of the initial private search are permissible. Specifically, the Jacobson case was about a government inspection of a package after a private company alerted the government about the contents of the package. Because the government initiated the search only after receiving the alert, and because the search did not go beyond the scope of the allegations they received, the Court deemed this search permissible.

The reach of this 1984 holding has expanded dramatically in the decades since the decision. The private search exception has allowed government surveillance of individuals’ online presence in a way that would be unconstitutional if the government undertook this sort of surveillance on their own. In 2021, in United States v. Wilson, the Ninth Circuit held that evidence regarding possession of child pornography in a private email was not admissible under the private search exception because Google passed the contents of the email to the National Center for Missing and Exploited Children (NCMEC) without a Google employee first reviewing the images.

When Luke Wilson uploaded four images to his GMail account as email attachments, Google flagged the attachments and sent them – without a human operator opening or viewing them – to the NCMEC under the category of child pornography. From there, NCMEC sent the images to San Diego Internet Crimes Against Children Task Force (ICAC), again without opening or viewing the images. The receiving law enforcement agent then viewed the images without a warrant and, upon viewing the images, obtained a warrant for the search of Wilson’s email account and home. The Ninth Circuit held that this search infringed Wilson’s right to privacy under the Fourth Amendment. The Ninth Circuit’s holding hinged on the fact that “...the government agent viewed Wilson’s email attachments even though no Google employee – or other person – had done so…” United States v. Wilson, 13 F.4th 961, 972 (9th Cir. 2021). Because no Google employee viewed the image, no Google employee “...‘knew and could say’ what those images showed.” Id. So, when the law enforcement agent opened the attached images, he went further in his search than Google had. Thus, his search fell outside of the scope of the private search exception.

The court’s reasoning betrays a distrust of artificial intelligence, specifically in Google’s automated flagging system. But, as AI becomes more intelligent and public opinion grows more trusting of AI, the precedent established in Wilson stands to be overturned. New generations of judges with higher levels of confidence in AI will be appointed to the bench and they may be more inclined to decide cases like the Wilson case in favor of government search. Further, as AI becomes more advanced it will eventually be able to not just flag images or content into categories, but actually describe the content in detail. But, if the private search exception is expanded to allow government agents to search materials screened by AI, then everything on the internet may be subject to warrantless search by government agents.

In order to prevent this potentially limitless expansion of the private search exception, the Wilson decision should be read to require that private review involve human review no matter what content is sent to government agents. The government should not be permitted to open or search materials it receives directly from artificial intelligence. Courts should set forth a standard that an initial search by artificial intelligence, without subsequent human review, cannot be used by government agents to justify their search of that material. Without a private human actor performing the first search, the state actor will be unable to ensure that their subsequent search remained within the scope of the initial search as the Jacobson case requires. Artificial intelligence can perform searches and flag material for a multitude of reasons or a combination of many reasons, the state actor cannot always ensure that their search will remain within the scope of the private actor’s allegations. In order for a state actor to get to the root of an allegation or alert received from artificial intelligence, they may have to conduct a search that goes beyond the scope of the search conducted by the AI. Thus, such a search would fall outside of the public search exception.

One possible justification for this rule is that artificial intelligence cannot testify under oath in the same way that a human being can testify under oath as to the contents and findings of their initial search. Further, it can be difficult to verify the specifics of the scope of the initial search. Another justification for this rule is grounded in public policy: failure to limit the private search exception may disproportionately impact already vulnerable communities who may have less education on how to protect their private information online. Finally, the private search exception functions much like a reporting channel for private actors to report alleged crimes or issues to state actors. If we allow AI to report directly to law enforcement, not only does surveillance grow exponentially but also AI rises to the status of a private actor in our society and under our legal system.

Artificial intelligence alone should not operate as a private actor under our law. If a search by AI constitutes an initial search by a private actor under the private search exception, then AI gets that much closer to legal personhood and the scope of governmental oversight increases.