Defendant Had Reasonable Expectation of Privacy in Google Drive Files, But Fourth Circuit Violation Was Too Attenuated

US v. Lowers: A Google Drive user uploaded 156 files to their account. Google’s hashtag-based algorithm flagged them all as child sexual abuse material (“CSAM”) and a Google employee reviewed 31 of them and confirmed that. All 156 files were reported to NCMEC, where an employee reviewed the same 31 files. Eventually , local law enforcement in Virginia got the tip and reviewed at least three other files, finding that the were CSAM.

A warrant based on that information led to a home family in Virginia and eventually their son, Lowers, in North Carolina. Lowers agreed to an interview with authorities and consented to a search of his phone (which revealed additional CSAM files. While Lowers was doing a second interview, authorities executed a warrant (based on “the entire investigation up to that point”) at his home, turning up hundreds of images and dozens of videos of CSAM. Lowers, after being charged with transporting and possessing CSAM, moved to suppress, arguing that the warrantless search of his Google Drive files violated the Fourth Amendment. The district court disagreed, finding Lowers had no expectation of privacy in those files and, even if there was a Fourth Amendment violation, the exclusionary rule should not apply.

On appeal, a divided Fourth Circuit ultimately affirmed the denial of Lowers’ motion to suppress, but on narrower grounds that the district court. Initially, the court held that Lowers did have a reasonable expectation of privacy in his Google Drive files. The court rejected the district court’s conclusions that because the files were CSAM and contraband (so identified by Google’s algorithm) Lowers could have no expectation of privacy in them, as well as the district court’s conclusion that Google’s terms of use would render any expectation unreasonable. That made law enforcement’s search of the additional files (beyond the 31 viewed by a Google employee) a Fourth Amendment violation not covered by the private search exception. Ultimately, however, the court concluded that the exclusionary rule should not apply because the violation was too attenuated from the evidence ultimately seized from Lowers’ home, given the passage of time and his consent to a search of his phone that revealed additional CSAM.

Judge King concurred in the judgment in a one-page opinion arguing that the private search doctrine should have been applied.