(CN) - A North Carolina man convicted of possessing child pornography asked the Fourth Circuit on Friday to toss out evidence that Google automatically collected from his private email account.
Nico Lowers, of Raleigh, is serving an eight-year prison sentence after pleading guilty last year to transporting and possessing child pornography.
Lowers argues on appeal the case was tainted by an improper search of images that Google obtained from his Google Drive and sent to the National Center for Missing & Exploited Children (NCMEC).
The three-judge panel appeared at odds on the lawfulness of the search during Friday's arguments, reflecting a larger divide among the appellate courts on the role of automated searches in criminal investigations.
No less an authority than U.S. Supreme Court Justice Neil Gorsuch has weighed in on the issue. While serving on the 10th Circuit, the Donald Trump appointee wrote the opinion in U.S. v. Ackerman that found the NCMEC conducted an illegal search by reviewing emails flagged by the internet service provider American Online.
The Fifth Circuit reached a different conclusion in U.S. v. Reddick, ruling that law enforcement did not exceed the scope of a private search by Microsoft SkyDrive when it reviewed suspect files without a warrant.
U.S. Circuit Judge Robert B. King, a Bill Clinton appointee, grilled defense attorney Raymond C. Tarlton at Friday's hearing on the reported accuracy of Google's screening tool in detecting child pornography - odds of an error are estimated at 1-in-9.1 quintillion.
"That's lead-pipe cinch," King said. "It's a lot of probable cause."
U.S. Circuit Judge Stephanie D. Thacker, a Barack Obama appointee, pointed out the government never established the accuracy of the algorithm because there was no evidentiary hearing in the case.
Google uses a proprietary algorithm to scan images and videos uploaded by users of its products, including Google Drive and Gmail, to determine if material is suspected child pornography. If the image's hash, or digital fingerprint, matches to a hash of suspected child pornography, the tech giant alerts the NCMEC.
Google identified 156 images of suspected child pornography on Lowers' Google Drive, according to federal prosecutors. A Google employee inspected 31 of them before alerting the NCMEC, which forwarded the tip to a detective in Chesapeake, Virginia.
The detective reviewed three files that were not previously inspected by the Google employee before obtaining search warrants for the contents of Lowers' Google Drive and his parents' Chesapeake home. Lowers confessed during questioning that he downloaded images at his parents' home and transported them on a flash drive to Raleigh.
Tarlton argued Friday the detective should have obtained a warrant before reviewing any files not personally inspected by the Google employee. Under the private search doctrine, police can use evidence obtained without a warrant by private third parties. But police can't exceed the scope of the original search.
Google's tool might have identified 156 suspect images, but it could not replace the human eye, Tarlton argued. If the detective wanted to review all the images, she needed a warrant.
Assistant U.S. Attorney Lucy Brown rebutted that Lowers could not prove he had a reasonable expectation of privacy in his Google account. Google's service terms and privacy policy tell users that it may search their accounts for child pornography.
"Google is saying: We don't want this here," Brown said.
Thacker asked Brown why no evidence was cited to support the reliability of Google's screening tool.
Brown said Lowers did not challenge the tool's reliability at trial - nor could he. It was exceedingly accurate at identifying suspect images, Brown argued.
U.S. Circuit Judge DeAndrea Gist Benjamin, a Joe Biden appointee, also served on the panel.
Source: Courthouse News Service
