How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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United States v. Miller

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-5578

Opinion Date: December 3, 2020

Judge: Murphy

Areas of Law: Communications Law, Constitutional Law, Internet Law

When a Google employee views a digital file and confirms that it is child pornography, Google assigns the file a hash value (digital fingerprint). It then scans Gmail for files with the same value. Google learned that a Gmail account had uploaded files with hash values matching child pornography and sent a report to the National Center for Missing and Exploited Children (NCMEC). NCMEC’s systems traced the IP address to Kentucky. A local detective connected Miller to the Gmail account. The Sixth Circuit affirmed Miller’s convictions. The Fourth Amendment restricts government, not private, action. A private party who searches a physical space and hands over paper files to the government has not violated the Fourth Amendment. Rejecting Miller’s argument that the detective conducted an “unreasonable search” when he later opened and viewed the files sent by Google, the court reasoned that the government does not conduct a Fourth Amendment search when there is a “virtual certainty” that its search will disclose nothing more than what a private party’s earlier search revealed. A hash-value match has near-perfect accuracy, creating a “virtual certainty” that the files in the Gmail account were the known child-pornography files that a Google employee had viewed. The admission of NCMEC’s report at trial did not violate Miller’s Sixth Amendment right to confront “witnesses.” The rule applies to statements by people. NCMEC’s automated systems, not a person, entered the information into the report.

State ex rel. Ware v. Giavasis

Court: Supreme Court of Ohio

Citation: 2020-Ohio-5453

Opinion Date: December 1, 2020

Judge: Per Curiam

Areas of Law: Communications Law

The Supreme Court denied Kimani Ware's request for a writ of mandamus to compel the production of records in response to his eight public-records requests, denied Ware's request for an in camera inspection of the records, and denied statutory damages, holding that Ware was not entitled to a writ of mandamus as to the public-records requests. Specifically, the Supreme Court held (1) Ware was not entitled to a writ of mandamus as to requested docket sheets and grand jury reports; (2) because the clerk's office offered to make the remaining public records requested by Ware available and identified the cost for copying them, Ware was not entitled to a writ of mandamus as to those public-records requests; (3) an inspection of the records was unnecessary, and therefore, Ware's request for an in camera inspection was unnecessary; and (4) Ware was not entitled to statutory damages.