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WinnieGuntherFirstPaper 2 - 24 Apr 2024 - Main.WinnieGunther
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The private search exception to 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 where 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 FedEx? package the contents of which had been reported to the government by the private entity, FedEx? . Here, because the government initiated the search only after receiving the FedEx? alert, and because the search did not go beyond the scope of the allegations they received from FedEx? , 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 vs. 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 without a Google employee first reviewing the images. The court’s reasoning seems to be based in large part on an underlying distrust of artificial intelligence, specifically Google’s automated flagging system. For this reason I am concerned that, as artificial intelligence develops, this precedent in United States v. Wilson may be overturned. As artificial intelligence becomes even more intelligent, the private search exception to the Fourth Amendment may broaden to include non-human actors thereby expanding the scope of this doctrine in such a way that the government can search any online activity without warrant.
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 them or viewing them – to the National Center for Missing and Exploited Children (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.
Since this 2021 decision, artificial intelligence has and continues to grow exponentially. One study projects that between 2023 and 2030, AI will grow at an annual growth rate of 37.3%. (https://www.forbes.com/advisor/business/ai-statistics/#sources_section). As AI becomes more advanced and companies begin to rely more heavily on AI, this need for human review may not remain as a key component for the private search exception to the Fourth Amendment. As new judges who have a higher level of confidence in AI are appointed to the bench, 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 human review no matter what content is sent to government agents. The government should not be permitted to open, view, and search materials it receives from artificial intelligence. Courts should clarify that the private search doctrine requirement of a private individual’s initial search means a private human being’s initial search. 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. One possible justification for this rule could be 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, there is no way to confirm that the initial search based on an automated algorithm was accurately or fairly done. 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. As technology advances, specifically artificial intelligence technologies, it is important that courts ensure that the Fourth Amendment protections remain intact and that exceptions to the Fourth Amendment do not get so broad as to effectively nullify the Constitutional protection of the right to privacy. |
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All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
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