United States v. Henry Reddick
Opinion
Private businesses and police investigators rely regularly on "hash values" to fight the online distribution of child pornography. Hash values are short, distinctive identifiers that enable computer users to quickly compare the contents of one file to another. They allow investigators to identify suspect material from enormous *637 masses of online data, through the use of specialized software programs-and to do so rapidly and automatically, without the need for human searchers.
Hash values have thus become a powerful tool for combating the online distribution of unlawful aberrant content. The question in this appeal is whether and when the use of hash values by law enforcement is consistent with the Fourth Amendment. For the Fourth Amendment concerns not efficiency, but the liberty of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." There is no precedent in our circuit concerning the validity of these investigative tools under the Fourth Amendment, and to our knowledge no other circuit has confronted the precise question before us. This case therefore presents an opportunity to apply established Fourth Amendment principles in this new context.
One touchstone of our Fourth Amendment jurisprudence is that the Constitution secures the right of the people against unreasonable searches and seizures conducted by the government-not searches and seizures conducted by private parties. Under the private search doctrine, the Fourth Amendment is not implicated where the government does not conduct the search itself, but only receives and utilizes information uncovered by a search conducted by a private party.
The private search doctrine decides this case. A private company determined that the hash values of files uploaded by Mr. Reddick corresponded to the hash values of known child pornography images. The company then passed this information on to law enforcement. This qualifies as a "private search" for Fourth Amendment purposes. And the government's subsequent law enforcement actions in reviewing the images did not effect an intrusion on Mr. Reddick's privacy that he did not already experience as a result of the private search. Accordingly, we affirm the judgment of the district court.
I.
In technical terms, a hash value is "an algorithmic calculation that yields an alphanumeric value for a file."
United States v. Stevenson
,
Hash values are regularly used to compare the contents of two files against each other. "If two nonidentical files are inputted into the hash program, the computer will output different results. If the two identical files are inputted, however, the hash function will generate identical output." Orin S. Kerr,
Searches and Seizures in a Digital World
,
II.
Henry Reddick uploaded digital image files to Microsoft SkyDrive, a cloud hosting service. SkyDrive uses a program called PhotoDNA to automatically scan the *638 hash values of user-uploaded files and compare them against the hash values of known images of child pornography. When PhotoDNA detects a match between the hash value of a user-uploaded file and a known child pornography hash value, it creates a "CyberTip" and sends the file-along with the uploader's IP address information-to the National Center for Missing and Exploited Children (NCMEC).
In early 2015, Microsoft sent CyberTips to NCMEC based on the hash values of files that Reddick had uploaded to SkyDrive. Based on location data derived from the IP address information accompanying the files, NCMEC subsequently forwarded the CyberTips to the Corpus Christi Police Department. Upon receiving the CyberTips, police detective Michael Ilse opened each of the suspect files and confirmed that each contained child pornography. Shortly thereafter, Detective Ilse applied for and received a warrant to search Reddick's home and seize his computer and related materials. This search uncovered additional evidence of child pornography in Reddick's possession.
Reddick was indicted for possession of child pornography in violation of
The district court denied his motion. Reddick subsequently pled guilty, while retaining the right to appeal the denial of his suppression motion. In denying Reddick's motion, the district court "assume[d] without deciding that Officer Ilse's viewing of the file images ... invaded a constitutional expectation of privacy, exceeded the scope of Microsoft Skydrive's hash value search, and did not fall into any exception to the warrant requirement." The court nevertheless concluded that "the evidence here support[ed] the good faith exception to the exclusionary rule." Accordingly, the court found no justification to suppress the evidence of child pornography found in Reddick's home.
As a general rule, "[w]e may affirm the district court's ruling on a motion to suppress 'based on any rationale supported by the record.' "
United States v. Wise
,
III.
Under the private search doctrine, "the critical inquiry under the Fourth Amendment is whether the authorities obtained information with respect to which the defendant's expectation of privacy has not already been frustrated."
United States v. Runyan
,
*639
The Supreme Court's decision in
United States v. Jacobsen
,
The Court held that the agents' actions did not violate the Fourth Amendment. "Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now-nonprivate information."
So too here. When Reddick uploaded files to SkyDrive, Microsoft's PhotoDNA program automatically reviewed the hash values of those files and compared them against an existing database of known child pornography hash values. In other words, his "package" (that is, his set of computer files) was inspected and deemed suspicious by a private actor. Accordingly, whatever expectation of privacy Reddick might have had in the hash values of his files was frustrated by Microsoft's private search.
When Detective Ilse first received Reddick's files, he already knew that their hash values matched the hash values of child pornography images known to NCMEC. As our court has previously noted, hash value comparison "allows law enforcement to identify child pornography with almost absolute certainty," since hash values are "specific to the makeup of a particular image's data."
United States v. Larman
,
Accordingly, when Detective Ilse opened the files, there was no "significant expansion of the search that had been conducted previously by a private party" sufficient to constitute "a separate search."
Walter v. United States
,
Significantly, there is no allegation that Detective Ilse conducted a search of any of Mr. Reddick's files other than those flagged as child pornography. Contrast a Tenth Circuit decision authored by then
*640
Judge Gorsuch.
See
United States v. Ackerman
,
* * *
The exact issues presented by this case may be novel. But the governing constitutional principles set forth by the Supreme Court are not. The government effectively learned nothing from Detective Ilse's viewing of the files that it had not already learned from the private search. Accordingly, under the private search doctrine, the government did not violate Reddick's Fourth Amendment rights. We affirm the judgment of the district court.
We assume without deciding that Reddick indeed had a legitimate expectation of privacy in the computer files at issue. As the district court correctly noted, "the most useful evidence on which to make the determination" of whether Reddick's expectation of privacy was reasonable-"the end user agreement governing Reddick's use of Microsoft Skydrive"-is not in the record.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee v. Henry Franklin REDDICK, Defendant-Appellant
- Cited By
- 26 cases
- Status
- Published