Back on November 15, 2019, I argued a case about the Fourth Amendment implications of the government searching email contents without a warrant.
Today, nearly two years later, the Ninth Circuit issued a wonderful opinion.
In United States v. Wilson, --- F.4th ---, No. 18-50440 (9th Cir. 2021), the Court vacated Wilson's child pornography convictions and reversed the district court’s denial of his motion to suppress. The Court also found the government waived any reliance on the good faith exception. So, that is that.
Here is some of the key language from the opinion:
We once again consider the application of the Fourth Amendment’s warrant requirement to new forms of communication technology.Our question is whether the government’s warrantless search of Wilson’s email attachments was justified by the private search exception to the Fourth Amendment. For the reasons that follow, we hold that it was not. We therefore reverse the district court’s denial of Wilson’s motion to suppress and vacate Wilson’s conviction.[W]e assume that Wilson had a subjective expectation of privacy in his email attachments that society is prepared to recognize as reasonable.Our question, then, is whether Agent Thompson was permitted to look at Wilson’s email attachments under the private search exception, such that the Fourth Amendment did not require him to procure a warrant.The government bears the burden to prove Agent Thompson’s warrantless search was justified by the private search exception to the Fourth Amendment’s warrant requirement. Before considering the private search exception, Coolidge emphasized “the most basic constitutional rule” in the Fourth Amendment arena: warrantless searches are per se unreasonable, subject to few exceptions that are “jealously and carefully drawn.” Accordingly, “[t]he burden is on those seeking the exemption.” The government has not met its burden here.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 Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’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 Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.“When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents.” The government reports there were 18.4 million CyberTips in 2018, making it all the more important that we take care that the automated scanning of email, and the automated reporting of suspected illegal content, not undermine individuals’ Fourth Amendment protections.Having examined this case with the requisite care, we hold, for the reasons explained, that Agent Thompson violated Wilson’s Fourth Amendment right to be free from unreasonable searches when he examined Wilson’s email attachments without a warrant.
