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Abstract

Few courts have addressed whether ISP’s use of hash-based evaluation violates an individual’s Fourth Amendment rights. In 2018, the Fifth Circuit was presented with this issue in United States v. Reddick. The defendant is Reddick uploaded files to the cloud-sharing server Microsoft SkyDrive. Thereafter PhotoDNA, a computer software program that uses hashing, automatically reviewed the hash values of those files and compared them against its database of known child pornography hash values. PhotoDNA detected a hash value match between the defendant’s photos and the database. It then created a “CyberTip,” sending the files and users information to the NCMEC. The NCMEC reported the files to law enforcement. The Fifth Circuit relied on the private search doctrine to guide its reasoning and found that the defendant’s Fourth Amendment rights were not violated. This note will examine the Fifth Circuit’s reasoning in the Reddick decision. It attempts to reconcile the oversimplified analysis the Fifth Circuit used in arriving at its decision. It is increasingly important that future defendants are afforded a thoughtful, balanced, and definitive legal analysis when it comes to Fourth Amendment protections of electronically stored information. This note looks at different analyses from lower court decisions and recommends that, on a case-by-case basis and paying close attention to the circumstances surrounding the search, courts should answer the following questions: (1) Was the individual that conducted the initial search in fact acting as a private individual? (2) Was the defendant’s reasonable expectation of privacy thwarted by the third-party doctrine? (3) Was there probable cause for the warrantless search? (4) Was the subsequent state actor acting within the scope of the private party search? If the answer to any of the preceding questions is no, the defendant should be entitled to challenge the admission of the evidence gained during the unconstitutional search.

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