Google Increases Privacy Concerns After Arrest of Gmail User For Possessing Child Pornography

Google Increases Privacy Concerns After Arrest of Gmail User For Possessing Child Pornography

Written by: Connor Turpan

On July 31, 2014 Houston police arrested John Henry Skillern for possessing and sending child pornography through his Gmail account.[1]  Skillern, a registered sex offender, was charged with one count of possession of child pornography and one count of promotion of child pornography after police found additional child porn on his mobile phone and tablet.[2]  Skillern had allegedly sent “explicit images of a young girl to a friend” through his Gmail account when Google detected the images through a scan and alerted the police.[3]

Federal law requires that companies providing an “electronic communication service” report individuals transmitting child pornography over that service to the CyberTipline of the National Center for Missing and Exploited Children.[4]  A service provider is only required to report the transmittal of child pornography when it “obtains actual knowledge” of the child pornography.[5]  Conversely, an electronic communication service provider is under no obligation to proactively monitor any communications sent through its service.[6]

Google, however, chooses to actively police communications sent through its email service for child pornography.[7]  Google uses image recognition software to identify images depicting child pornography that users of its products upload to its servers.[8]  The company crosschecks images sent through Gmail against a database of images depicting child pornography, categorized using an algorithmic hashing system, which it maintains.[9]  When a picture is confirmed to contain child pornography, Google creates a report and alerts the authorities.[10]  Google’s software, which utilizes Microsoft’s PhotoDNA technology, can identify the image even if it has been altered.[11]  Google has shared this photo scanning technology with both Twitter and Facebook.[12]

While law enforcement agencies are undoubtedly ecstatic about the potential for increased arrests for possession of child pornography, others are fearful that this policing might prove to be too invasive into the privacy of Google’s users.[13] In recent years, Google has found itself increasingly at the center of controversies related to its privacy policy and its collection of data from individuals who use its services.[14]   Google has recently faced criticism for its scanning of its user’s emails to allow it to “present relevant ads inside Gmail” to its users.[15]  Similarly, in March 2014, Microsoft defended its own searching of one of its users’ emails when it discovered that an “ex-employee had leaked proprietary software to an anonymous blogger.”[16]  Google, in response to fears that it may search for other conduct, maintains that it only searches for child pornography, and not “general criminal activity” in its users’ emails.[17]

Google would not violate its terms of service[18] or the Fourth Amendment of the United States Constitution[19] if it decided to police other items sent through its email service.[20]  However, the United States District Court for the Northern District of California recently denied Google’s motion to dismiss a complaint alleging that Google has violated federal wiretapping laws in its collection of data from emails sent through Gmail.[21]  Barring an adverse decision in that pending proceeding or an update to its terms of service, Google will likely continue to search Gmail for child pornography, while also possessing the seemingly legal ability to search for other illegal content in the future.

[1] Alroy Menezes, Google Helps Law Enforcement Crack Down On Child Pornography, Defends Policy, International Business Times (Aug. 5, 2014, 5:22 AM), http://www.ibtimes.com/google-helps-law-enforcement-crack-down-child-pornography-defends-policy-1648858.

[2] Stephanie Mlot, Man Arrested After Gmail Detects Child Porn, PCMag (Aug. 4, 2014, 9:45 AM), http://www.pcmag.com/article2/0,2817,2461971,00.asp.

[3] Tip From Google leads to Texas child porn arrest, CBSNews (Aug. 4, 2014, 11:07 AM), http://www.cbsnews.com/news/tip-from-google-leads-to-texas-child-porn-arrest/.

[4] 18 U.S.C. § 2258A(a) (2008).

[5] Id.

[6] 18 U.S.C. § 2258A(f) (2008).

[7] See Google Terms of Service, Google (Apr. 14, 2014), http://www.google.com/intl/en/policies/terms/ (“We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law.”).

[8] Mark Wilson, Google email scanning technology catches pedophile sharing abuse photos, betanews, http://betanews.com/2014/08/05/google-email-scanning-technology-catches-pedophile-sharing-abuse-photos/ (last visited Aug. 27, 2014).

[9] Id.

[10] James O’Toole, Google snoops on Gmail to catch pedophiles, CNN Money (Aug. 14, 2014, 12:03 PM), http://money.cnn.com/2014/08/14/technology/enterprise/gmail-pedophiles/index.html.

[11] Rick McCormick, Google scans everyone’s email for child porn, and it just got a man arrested, The Verge (Aug. 5, 2014, 4:31 AM), http://www.theverge.com/2014/8/5/5970141/how-google-scans-your-gmail-for-child-porn.

[12] Id.

[13] O’Toole, supra note 10 (“’Child porn is terrible, but what if someone sends an email with a pirated episode of Game of Thrones? . . . What if I write an email that’s harassing or contends offensive language? Will Gmail police that too, and do we want to live in a society where companies are policing that?’”).

[14] Steven Rosenfeld, 4 ways Google is destroying privacy and collecting your data, Salon (Feb. 5, 2014, 7:50 AM), http://www.salon.com/2014/02/05/4_ways_google_is_destroying_privacy_and_collecting_your_data_partner/.

[15] McCormick, supra note 11.

[16] O’Toole, supra note 10.  See also John Frank, Strengthening our policies for investigations, Microsoft (Mar. 20, 2014), http://blogs.microsoft.com/on-the-issues/2014/03/20/strengthening-our-policies-for-investigations/.

[17] O’Toole, supra note 10.

[18] Google Terms of Service, supra note 7.

[19] U.S. Const. amend. IV.

[20] O’Toole, supra note 10 (“[I]f Google ‘decided to take it upon themselves to police other things, they could do it and it wouldn’t violate the terms of service or the Fourth Amendment” . . . . You invite Google to look in on your communications by signing up for its services.”).

[21] In re Google Inc. Gmail Litigation, No. 13-MD-02430-LHK (N.D. Cal. Sept. 26, 2013) (order granting in part and denying in part Google’s motion to dismiss).

Author: Connor Turpan

Connor Turpan is a second year student at Rutgers School of Law-Newark and an Associate Editor of the Rutgers Computer and Technology Law Journal. A native of Bergen County, Connor received his B.A. in Law and Society at the American University in Washington, D.C., where he minored in Economics. Last summer, he interned with the Honorable Barry P. Sarkisian in the Hudson County Vicinage of the New Jersey Superior Court. Prior to entering law school, he interned at Stern, Lavinthal & Frankenberg, LLC, a real estate boutique specializing in creditor’s rights and commercial litigation in Roseland, New Jersey.