Houston man charged with child porn possession after Google cyber-tip

Now, I will preface this by saying that child molesters are despicable, no one will argue that. But because they are so vile, they make great test cases for pushing the boundaries of search and seizure law.

But the problem is that once the courts create a legal rationale to justify Google reading the child molester's email, that rationale can be applied to anyone.

So there's a whole host of defenses that could be raised:

1. The Wiretap Act - prohibits interception of electronic communications by private entity. Even Google's automated scanners, if applied to Gmail, could fall afoul of this law.

2. The Stored Communications Act - The Fourth Amendment creates very limited protections for stored electronic communications like email under the "third party doctrine." The third party doctrine essentially states that you have no privacy rights under the Fourth for any information you voluntarily send to another company or individual. The rationale being that, since you knowingly transmitted it, there is no reasonable expectation of privacy.

However, The Stored Communications Act, part of ECPA, creates several statutory quasi-Fourth Amendment rights for stored electronic communications, especially email.

3. Agent of the State

This is the weakest argument, but essentially the defendant could argue that Google was acting at the behest of the government, and thus full constitutional protections would attach. The rationale here is that Google and law enforcement were working so hand-in-glove that Google was a de facto state agent. This would make it very messy, as more powerful Constitutional protections would attach.

Now, the bottom line here is that Google is reading content and transmitting it to law enforcement. I'm sure the right to read your email is in their ToS, but that could be successfully challenged if the language is either too narrow or overly broad as to be vague and thus void (two mistakes highly-paid attorneys make quite often.)

EDIT, in response: Yes, that's true. You'd need to show sufficient public-private nexus to have a chance in the criminal prosecution. But if you can brush Google back off the plate a bit using the private causes of action in #1 and #2, you may be able to get the discovery you need to prove the state-agent argument. For example, I guarantee Google has government Powerpoints floating around about activities certain agencies would like reported.