Court touts digital privacy rights, yet upholds NC child porn ruling

The 4th US Circuit Court of Appeals has upheld a child pornography conviction in a North Carolina case, despite rejecting the trial judge’s rulings about the defendant’s privacy rights.

The decision Tuesday affirms an eight-year prison sentence and 20 years of supervised release for defendant Nico Aaron Lowers.

“At its core, this case requires us to decide whether the privacy expectations guaranteed by the Fourth Amendment apply with equal force in the digital world,” wrote Appeals Court Judge Stephanie Thacker. “The district court below held that Nico Lowers (‘Appellant’) had no expectation of privacy in the files he uploaded to his private Google Drive account, files that contained child sexual abuse material (‘CSAM’). Therefore, the court denied Appellant’s motion to suppress the evidence of conviction that flowed from law enforcement’s warrantless search of those files.”

“We reject the district court’s proffered reasons for so holding,” Thacker added. “Just as Americans enjoy a reasonable expectation of privacy in files maintained in a filing cabinet in the physical world, so too, Americans enjoy a reasonable expectation of privacy in the digital files they place in cloud based storage accounts. Law enforcement cannot open and view those private files without first securing a warrant. Because law enforcement here failed to secure a warrant before opening Appellant’s files, we hold that this was an unreasonable search in violation of the Fourth Amendment.”

Yet the court did not throw out Lowers’ conviction.

“That constitutional violation notwithstanding, we nevertheless agree with the district court’s alternative holding that suppression is unwarranted because the causal connection between the illegal search and the later discovered evidence is too strained to trigger the exclusionary rule,” Thacker explained. “The evidence Appellant seeks to suppress came to light months after the illegal search and only because of multiple intervening circumstances. Suppressing the evidence would do little to further the exclusionary rule’s sole purpose of deterring future police misconduct. For that reason, and that reason alone, we affirm.”

The case against Lowers started with a tip from Google to law enforcement in 2019 about files uploaded to a Google Drive account in Virginia. The company used a “hash-matching algorithm” that spotted potential child pornography among the files.

Six months after the tip, authorities looked into the issue. Chesapeake police detective Jennifer Rider, working without a warrant, examined the evidence. Court records indicated that Rider looked at least three images that Google never had reviewed.

After Google’s initial tip, Lowers moved from Virginia to Raleigh. Authorities interviewed him twice and conducted searches of his apartment, cell phone, and laptop. Those searches yielded additional evidence of child pornography.

As the legal case against him proceeded, Lowers argued that the initial warrantless search from Chesapeake police tainted all other evidence against him. He moved to suppress the evidence.

Chief US District Judge Richard Myers denied the motion and ruled that Lowers had no reasonable expectation of privacy. The 4th Circuit disagreed.

“An officer’s decision to search an unopened digital file that a hash-matching algorithm flagged as containing apparent CSAM implicates serious privacy concerns, and the district court erred in whisking away those concerns,” Thacker wrote. “Today we hold that a hashing algorithm, which reveals nothing about a given file but a non-descriptive serial number, does not frustrate a defendant’s expectation of privacy in his unopened files.”

“We further hold that, unless someone visually inspects the contents of a file containing apparent CSAM prior to law enforcement doing the same, the defendant maintains a reasonable expectation of privacy in the file and the private search doctrine is inapplicable,” Thacker added.

The “private search doctrine” allows law enforcement officers, under some circumstances, to view items based on searches conducted by private third parties.

Thacker noted that other federal appeals courts have reached different conclusions. “[W]e align ourselves with the Second and Ninth Circuits,” she wrote, while “our holding puts us at odds with the Fifth and Sixth Circuits.”

Other factors convinced the 4th Circuit that Lowers’ conviction could stand. Among them was the Chesapeake detective’s actions in the case.

“Detective Rider’s misconduct was anything but flagrant,” Thacker wrote. “Make no mistake, she violated the Fourth Amendment when she opened and viewed Appellant’s files without a warrant. But there is no evidence in this record to suggest that Detective Rider opened and viewed Appellant’s files intending to circumvent the Fourth Amendment’s warrant requirement. And, any ‘mistake [due to] ignorance of the law’ is a far cry from flagrancy.”

Judge DeAndrea Gist Benjamin joined Thacker’s opinion. Judge Robert Bruce King concurred in the result but wrote separately.

“Put simply, the majority is entirely correct in its bottom-line conclusion that the district court properly denied defendant Nico Lowers’s motion to suppress evidence of child pornography,” King wrote. “In my view, however, there is no need to reach or address whether the evidence utilized by the prosecutors to convict Lowers was sufficiently attenuated from what the majority rules was an ‘illegal search’ by law enforcement in opening and viewing electronic images of apparent child pornography identified by Google.”

“Rather, I would simply join with the Fifth and Sixth Circuits and rule that the ‘private search doctrine’ — which stands for the well-founded and sensible proposition that ‘the Fourth Amendment is not implicated by a private search,’ when law enforcement ‘merely review[s] the same information that was discovered during the private search’ by a private party (i.e., Google) — inoculates against any Fourth Amendment violation being attributable to Lowers.”

“Court touts digital privacy rights, yet upholds NC child porn ruling” was originally published on www.carolinajournal.com.