Like all responsible service providers in the technology industry, Google takes child protection very seriously. Gmail uses “proprietary technology to deter, detect, remove and report crimes,” including identifying child sexual abuse material in email messages. By signing up to use Gmail, you agree to Google’s terms and conditions permitting such searches. Now, the U.S. Court of Appeals for the Second Circuit has ruled that once details of the initial findings are provided to law enforcement, that doesn’t mean further searches can be conducted in violation of 4th Amendment protections.

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How Does Google Detect CSAM in Gmail Messages?

Google explains: Measures required to identify and report material related to child sexual abuse in some detail on the Internet. This includes working with expert teams at Google, as well as technological solutions such as machine language classifiers and hash matching. Mixed matching is at the heart of this new appeals court decision. Think of the hash as the digital fingerprint left behind by any image or video file; Like fingerprints, these are unique to each file. This means Google can detect hashes associated with known CSAM images and videos in Gmail messages without actually displaying the offensive and illegal material. “When we find CSAM, we report it to the National Center for Missing and Exploited Children,” Google said, “and they are in contact with law enforcement agencies around the world.” It’s sad to say that it was hugely successful; because it’s sad too many images detectedbut it is positive because it means law enforcement can take action against people distributing it.

To summarize, Google’s terms of service prohibit the use of any of its platforms, including Gmail, to store or share CSAM content. Hash-matching technology allows Google to detect such content in Gmail messages without the need for a human to read the email and actually view the image itself (just the hash).

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Gmail Child Exploitation Material Reported to Law Enforcement – Law Enforcement Overreach, Court Rules

As received by Reporters at TechDirtThe 2nd circuit court of appeals ruled on a case appealed from the United States District Court for the Northern District of New York. This case involved a man who was convicted of possessing CSAM images but appealed on the grounds that the law enforcement order was “tainted by prior unconstitutional violations.”

The detected CSAM hash value was forwarded to the National Center for Missing and Exploited Children, which was then forwarded to law enforcement for investigation and potentially prosecution. However, it turned out that law enforcement officers also performed a visual inspection of the child abuse image rather than just the marijuana itself. TechDirt reported: “They went beyond the scope of Google’s proprietary algorithmic search, so they learned more than just the hash of the Maher file image; they learned exactly what was depicted in that image.”

And here court order The review was conducted before an arrest warrant was issued, barring the government’s claim that it benefited from a private search through law enforcement because Google never viewed the Gmail CSAM image in question. It was first seen by anyone other than the perpetrator when investigators opened it. Unfortunately, law enforcement could have easily obtained an arrest warrant using probable cause, the hash, but for whatever reason chose not to do so until additional searches were conducted.

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Gmail Search Rule

Therefore, Google’s terms of service state that it may review content and share it with a third party if required to do so under any applicable law (for example, if they have actual knowledge of CSAM on their platform). The court decision merely advises that the perpetrator’s “reasonable expectation of privacy” for the content in question, regarding state access, is not overridden by Google’s terms. As TechDirt so eloquently explains, “agreeing to share things with private company third parties is not nearly the same as agreeing to share those same things with the government at any point when the government wants to access content or communications.”

The good news is that the conviction remains a good faith exception to the search in this case. The better news is that when it comes to material found in Gmail, it sends a message to law enforcement that doesn’t cross the line and follows the correct search warrant procedure. We all want such perpetrators to be brought to justice, and procedural errors that could prevent this from happening need to be mitigated.