Panel vacates child porn conviction over privacy rights

A 9th U.S. Circuit Court of Appeals panel vacated a child pornography conviction Tuesday because law enforcement officials never got a search warrant even though the information originally came from Google.

The case drew amicus briefs from several privacy rights groups which argued that the conviction threatened privacy rights. Alphabet Inc.-owned Google, along with Facebook Inc., denied the conviction violated the Fourth Amendment in another amicus brief.

Google reported to the National Center for Missing and Exploited Children that defendant Luke Wilson had uploaded four images of apparent child pornography to his email account as attachments. But that report did not include the attachments, and no one at Google viewed them. Instead, the center forwarded the information to the San Diego Internet Crimes Against Children Task Force, where an officer viewed the attachment without a warrant.

Prosecutors argued that the government didn't need a warrant under the private search exception, but 9th Circuit Judge Marsha S. Berzon, an appointee of President Bill Clinton writing for the panel, disagreed.

The first person who saw the images in the email attachments and identified them as child pornography was a federal agent, who did not get a search warrant before doing so, the judge wrote.

"Because the government saw more from its search than the private party had seen, it exceeded the scope of the private search," Berzon wrote. U.S. v. Wilson, 2021 DJDAR 9834 (9th Cir., filed Dec. 21, 2018).

Devin J. Burstein, who represented Wilson on appeal, hailed the ruling and the amicus briefs filed by the ACLU, the Electronic Frontier Foundation and the Electronic Privacy Information Center.

"The 9th Circuit took a big step toward ensuring that individuals continue to have robust Fourth Amendment protection in the digital age," Burstein wrote in an email. "The opinion is clear, comprehensive, and compelling."

Kelly Thornton, a spokeswoman for the U.S. attorney's office in San Diego, declined to comment on the ruling or whether the government would seek en banc review.

"The private search exception allows agents to review information discovered by a third-party private actor to the same extent the private actor reviewed it," Assistant U.S. Attorney Peter G. Ko wrote in court papers defending the verdict.

Wilson had been sentenced to 11 years in prison. The appellate panel reversed U.S. District Judge Gonzalo P. Curiel of San Diego.