United States v. Miller, No. 18-5578 (6th Cir. 2020)
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When a Google employee views a digital file and confirms that it is child pornography, Google assigns the file a hash value (digital fingerprint). It then scans Gmail for files with the same value. Google learned that a Gmail account had uploaded files with hash values matching child pornography and sent a report to the National Center for Missing and Exploited Children (NCMEC). NCMEC’s systems traced the IP address to Kentucky. A local detective connected Miller to the Gmail account.
The Sixth Circuit affirmed Miller’s convictions. The Fourth Amendment restricts government, not private, action. A private party who searches a physical space and hands over paper files to the government has not violated the Fourth Amendment. Rejecting Miller’s argument that the detective conducted an “unreasonable search” when he later opened and viewed the files sent by Google, the court reasoned that the government does not conduct a Fourth Amendment search when there is a “virtual certainty” that its search will disclose nothing more than what a private party’s earlier search revealed. A hash-value match has near-perfect accuracy, creating a “virtual certainty” that the files in the Gmail account were the known child-pornography files that a Google employee had viewed. The admission of NCMEC’s report at trial did not violate Miller’s Sixth Amendment right to confront “witnesses.” The rule applies to statements by people. NCMEC’s automated systems, not a person, entered the information into the report.
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