Should Warrantless Digital Searches be Allowed to Decrease the Dissemination of Child Pornography: A Likely Future for Private and Governmental Use of Hash Value Algorithms

Abstract

This Note will first discuss the current nature and use of HVAs. Second, this Note will survey applicable Fourth Amendment doctrine. Third, this Note will address the use of HVAs by private companies. Fourth, this Note will explore relevant case law that illustrates how courts have struggled to apply the Fourth Amendment to the use of HVAs. This Note will argue that Supreme Court precedent regarding the Binary Search Doctrine supports the position that HVAs are not considered searches under the Fourth Amendment when used to detect CP or other illegal digital contraband. This Note will then explain that if HVAs are not searches under the Fourth Amendment, the government would be able to use warrantless HVA searches to fight a more aggressive battle against the dissemination of CP. This Note will also explain how the future of private entities’ HVA use would remain largely unchanged and, following the decision in United States v. Wilson, there is a clear procedure that could be adopted to avoid Fourth mendment violations when private HVAs detect CP. Finally, this Note will explore the potential dangers involved in the warrantless use of HVAs.35 Ultimately, this Note proposes that (1) warrantless HVA searches Ashould be allowed for the detections of CP, (2) Congress should pass a law that restricts the use of warrantless HVAs to the detection of CP and other illegal digital contraband, and (3) Congress should update federal statutes to provide a clear reporting structure for CP discovered by private entity HVAs to avoid Fourth Amendment violations.