things to look at was there a physical intrusion on constitutionally protected space to obtain information and i argue the that is the plain words of that is clear here what we have i mean ultimately the key here to that we all know  unlocks a lot of what's going to happen i predict in the future with data privacy cases in the trust best doctoring the data has a proper you have a property right in your data and in this case that data was covered up it was env in a file so a file system is a modern day container for data now they that can be multiple things and there may be days where we get to complicated things about data as to whether that data is actually yours because the primary question of the trespass doctrine is was it yours and i don't think we have that much complication for data in this context this data is like anything else it is your email attachments in your emails or your data your data can contain pictures it can contain documents p d s anything but that data is covered by a container so the question is was that container physically trespassed upon now there's complicated answers to that i cited to a lot of your article from someone you've got mail that knows far more about computers than i do but the intuition is pretty clear that if you're going to open a file you  going to physically trust pass to retrieve the data now ultimately the analogy made in that article is like a fence a file is like a fence around real property that's that's clearly an analogy but the data is in there you go over remove that fence now you have access to that data but who's committing the who's committing the trespass into the scenario isn't it google with their search their hash tag search that does the match because that's a essentially equivalent to actually looking at the file because of the reliability of the hash value i would and i'm sorry i would say that google does do a search and does do a trust pass but  the to the actual file with the hash value technology but ultimately the fact they did that is irrelevant to a trespass task doctrine trespass test down the line of when the governor what if so that's why you want to basically switch the framework from cats to trespass but doesn't we can't switch halfway when and so the question would be if at the time of the founding in a private party trespassed on property and stole some mail or something and then handed the mail over to the government basically open letters essentially what the government be committing a trust has just by simply reading the letters or that's the st question and nd it's not intuitive even if that would  a search or seizure the question would would be whether it's reasonable as well within the meaning of the th amendment and so when we have to look to i mean you want to switch to this trespass notion or we have to look to the original understanding for those questions to yes  and the the formulation is that government can redo a search is a limitation on a cat because it's what it's a limitation on is the part of the cat's this which is you reasonable expectation of privacy that's frustrated ultimately upon frustration extinguished you don't have that response nation of privacy the more the open letter question i submit that this is different because this is a closed container still  and a file can be opened then it can be closed back up this file was was never opened by google this particular scene for a nd that we think that the hash value is as analogous to opening that and then there's no difference between doing the hash value that shows because it's so accurate that shows that it is the picture that google says it is and the actual opening of it so if if if so maybe change the hypothetical a little bit  yes this is chap without using hash and said it all along with the fact that the government looked at the open file raise a th amendment question either under search or under reasonable i think it would still be problematic under the trespass test but i think because i think the reasonableness inquiry while there is this word reasonableness and the cat's formulation there's also reasonableness over all touched on the th amendment but that reasonable has been said to be per se unreasonable if you don't have a warrant unless you have a well one of the worn exceptions the private early when you could have gotten one really easily based on what you already had that is the key to this is one of the keys to this case it is one of the things that is hard is is my argument often you know the sky is falling often happens when you make a trespass against argument and it's not the sky is falling because this is the proper way to handle emerging technologies would be explain it to the detached neutral magistrate or judge have them review it see that this causes problems cause get a warrant open up the email attach don't you think that the per se rule developed along with the other has the per se rule been around since cats are i mean courses recently said of the carpenter dissent a lot of jurisprudence is needed in this type of issue but i would say that no that what we have right now is the there are exceptions to the warrant requirement we know what those are consent it's eggs in circumstances those also there will always apply to the trespass doctrine because there are exceptions to the warrant requirement but the private search doctrine is not an exception to the war required the private search doctrine develops similar to the rd party is a limitation on cats about a search you know is this a it's to say it's not a search but trespass says oh no this was a search because you physically trespassed on our constitution constitutionally protected space that being a paper person or effect that being the data in this case that being the chap on that point i mean justice or then judge of course it says there could hardly be a more obvious analogy than  common law trespass to this sort of virtual sort of letters and so on i'm not good with i t's so i'm sorry our expert is here thing th t said i mean what is the legal authority for saying ok this is true it's kind of all virtual but we should we are going to treat it like a physical trespass i mean are you asking us to be that authority is there  e mail has replaced mail in our in our society and if that is the case then it's intuitive that we are treated the same now it's treated as a is a bailment it's a bailment where you've turned it over to  the rd party to deliver it but you still retain your property rights and stuff that is a bailment and that's what i would argue happens here the above the the authority would be us outside we would have to break that ground and say ok for these very good reasons we're going to treat this not just as some virtual trespass but as physical trespass for purposes of jones and cetera i think the answer is for the most part yes but there is still some i believe that the tide is well i mean the the kernel case that i cited that is the sarah palin e mail hack where the government clearly she that governor palin had a property interest in her e mails that's how the government they were charged with wire fraud for affecting that property interest so i think that the idea this passes about physical paper is a paper personal paper fact if it is then put into a file and put on my computer i don't i think the modern technology makes it slightly different but at the same time i think it is in fact the same thing that the government is doing now my equipment isn't just the piece of paper it's the piece of paper going on is what i say file is right and that's what is trespassed upon is  applies in different context i know you just didn't judge suggested in the alternative as to apply in this context but i'm curious if there's any holdings from the courts of appeals that have extended jones property focused approach chalking case i believe on a car but the reality is that yes it has physical it's a it wasn't and we didn't hold i was on that panel we did not hold it was a it was a search we just said these exceptions don't got the reason i'm asking the question is this is this is a pretty significant would be a pretty significant intrusion into that traditional way of thinking about i terms of jacobson and the question is do we even have authority to do that or should we be pointing this potential inconsistency between jacobson and jones out to the supreme court but then follow jacobson under the principle that it's our duty to follow the case that's directly on point even if another line of authority suggests that the supreme court has now seen things differently i would say then judge gorsuch did exactly that  there it was an alternative it was an argument in the alternative because even under the jacobson test the th circuit said it failed because you looked at more than just the image here you're asking us to say something that it seems to me there's pretty good cover arguments by the government that jacobson should apply fully and so the question is even of jacob set up would apply could we still find a violation based on jones so that's different than what the agreed and i would say yes this court certainly has that power through the jones case law that the main thing about joan's case law is this is easy this is a plane we re plain words we look to what the founders would have thought about male and opening up male and if you look to the founders and it's plain physical trespass to constitutionally protected space papers and effects you have now searched it where's the warrant requirement position is that a private search the private search doctor and controls in this case and detective skills visual looking inspection of the images of the two files that were attached to the e mail that generated the cyber tip went no further than that private search and as a result   privacy and the fact that the person there had already lost his privacy interest in the exposed powder  case no lichtenberg or was the case much like this where the court analyzed the issue in terms of the private search doctor and the test was as long as the government essentially stood to gain no additional information and was virtually certain of what it was going to find what it was going to that's the one with the pictures can you or can you give me the facts africa there's i don't remember this case lichtenberg or was the girlfriend who without the defendant's consent perused some files on her boyfriend's computer and observed child pornography alerted law enforcement of that fact and when law enforcement came back to the test the proof why's that they could not the girlfriend the one  establish that what law enforcement saw was exactly what the girlfriend had seen and so in lichtenberg this court held that the private private search doctrine essentially insulates a subsequent search by law enforcement is long as that is being made and is not controlling on that what what would you have to say then about why this was not a trespass amounting to a search if there was any trespass in this case it was it was done by google yeah but i mean if somebody said i think their contention is jacobson does not apply to a trespass theory you know if if so a person loses their privacy interest in the e mail if google already knows what's in there is your argument i totally understand that but let's say let's say you live and somebody lives in the defendant lives in a house with a high metal fence and a neighbor climbs over that fence sneaks up onto the back porch looks in a window and sees a bunch of cocaine sitting out and then they call the police and for whatever reason an officer rather than get a warrant chooses to do the exact same thing climb over the fence here in the window and see it and then they say ok well i see the cocaine and then they get a warrant i mean that the st trespass doesn't make lawful the nd one he does not put it in this case i think the facts are more complicated given that we're talking about digital media attachments e mails not contents of e mails in an e mail service provider that the defendant  the government's position is that if there was a trespass that that the territory was already charted by google before it and protective shield went no further and so that's that is the government's position if this court finds that lichtenberg or doesn't control but the government that lichtenberg or does control and in this case given not just the entire process that google went through in this case the matching technology that was preceded by a google employee actually viewing the images having the file hash in the adding it to the repository but also the other additional information that was contained in the nick cyber tip tip line report gave tect of she'll the virtual certainty that this will all this court and the law requires to insulate his search importantly it won't makes this case different from ackerman this is the case that ackerman the question that ackerman left on resolved it's this case in this case unlike ackerman there were no contents of the e mail e mail that generated the cyber tip that were that was transmitted simply just the attachment that's why i think you have a really good argument under jacobson but it's still getting back to the point that how does jones seems to suggest that there is  property rights floor at the meaning of the th amendment and then katz can expand the protections that the th amendment provides but can reduce the protections that the th amendment provides so  suggests that we do have to in some respects look at this and the way that jones looked at it and it's not clear to me that jacobson should apply because it really was about whether there was a reasonable expectation of privacy and said there isn't a reasonable expectation of privacy when it's a private party when it's that within the scope of the property search so that doesn't have a how would that analysis map onto a property based analysis in this case i think the government contends that the result would be the same because unlike the cases like jake or excuse me jones on the other property based traits we have in this case property that was transmitted vs rd party by the defendant's voluntary consent so  render in the mail but the government can't rifle through it but is the government argued before the magistrate in this court for the major in this case it wasn't the prevailing reason why the magistrate ruled the way she did in my the dischord adopted about we did argue before the magistrate that given the defendant a using choosing to use an email service provider in this case or any i s p to transmit communications there are terms of service and that there is some level of forfeiting that expectation of privacy when you're doing so i mean i don't i don't i don't really track that i mean why isn't it just a bailment just like putting a pet let's get the government out of it you know i send something of an envelope by fed ex and  i mean just because i've handed it over to fed ex in the manner that it's an e mail user sends stuff through their provider just because i hand it over to fed ex doesn't mean the government can open up and it 's not trust us i'm not sure fedex would be the great analogy in that there is in this case the defendant here to take multiple google state actors which are saying absolutely no absolutely not but in this case the defendant takes affirmative steps to set up an account with google by subscribing with google so it's a very thin but you're going to be pointed towards the the terms of service agreement and i don't see anything in the terms of service agreement that would support the argument you're making it was it i was simply bringing it up in that that was a position that the united states argued before the main street when we were litigating the initial motion to suppress that we argued that the defendants expectation of privacy in the e mail attachments was not reasonable it was not that was not the prevailing argument that the  magistrate based or are in aren't simply it's certainly wasn't the argument that the district court found to be a winning argument at the district court level you also argue that you thought the this case is resolved by look temporary given that it looked your burger they found that under the facts that case the private search doctrine didn't save the government there was no need to go on and discuss a private trespass argument even were it have to have been made in that case i write about that you are but in this case then has a how does that then result of how a trespass analysis would apply in this case it does it lichtenberg or does it not i thought you just said that you said that we were bound by that i understand as to the private search doctrine part of it correct and the other thing that i wondered about and this is throughout  of a lot of the briefing at that i don't mean to suggest this is dispositive i'm just curious you of alluded today to there being a difference between the e mail and the attachment at least that's what i thought i heard you say that was one of the distinguishing factors that distinguishes this case from ackerman ok now here here's what i'm trying to figure out why that makes a difference it's not unusual around here for somebody to send an e mail that has the actual communication itself in other words what we would equate to be the letter the letter is actually an attachment to and to an e mail that just says here here's a here's a letter from judge alito so why is the fact that we call it an attachment why does that make a difference one way or the other why isn't why don't we analyze it where the e mail the equivalent of the letter and everything that is attached to it is all part of the letter the classification or the focus on the the attachment is not  positive it was the fact that earlier i'm just wondering what differences do you think it makes it makes a difference because when you look in the now in the private search dr analysis it's what is controlling in this case if the private if the law if the subsequent search by law enforcement revealed nothing more than the private search had been the private search dr controls and because detective fields review was limited to e mail attachments which were hashed and scanned and found to be a match by google those two things are equal there was no expansion of this act that it that's in the form an attachment doesn't matter that's cracked into the emphasis on attachment is not important the emphasis i was on that the two things that were searched searched by early proprietary software and the things searched by detective shield by putting his eyes on them those two things were the same in this case they were the e mail attachments and nothing more so i mean if a private party  the government actually just reviewing that be considered a search or a trespass or anything of that sort i would i would think not but the briefing really is totally unclear out because that's the analysis that it seems to me that would be a plausible if we're doing a property rights based approach there's got i mean people people breanne incriminating evidence to the government can't be something that's new i mean it's and you know with technology because they can do these types of things but i suspect that  people may have engaged in private parties may have a gauge in searches at the time of the founding and delivered incriminating evidence to the government and then the question would be how would that be treated as a matter of property rights presumably they would have some type of tort or property or conversion action against the private party but what does it extend to the government or how the government's position would be that the th amendment would not be implicated so we would agree with the court that when not be considered a search i can off the top of my head think of an example where you would open a letter and there would be incriminating evidence in would be because you wouldn't view the government's taking possession of the stolen property as a search or would it just be that when private property delivers incriminating stuff to the government it just it's reasonable for the government to whether as an automated and if it's manually inputted by an analyst i would think that that is testimonial in a way that perhaps one of the if it was automated so well but what's the record actually say on that the both parties are saying different things your honor the record supports that the information about the geo location of the ip address was automated there's documents there were there was an exhibit the report really challenging the other types of searches just online searches that an interesting or would you think that those online analyst searches would be testimonial it seems to me that the entire point of it of this report is  to find incriminating evidence against the individual for purposes of down the road looking at a trial i think that the information section to see in the report is where the analysts sort of puts his or her hands on the report and starts doing public search queries be open source or records and those sorts of things i think if there is any part of the report that could be testimony on it's not the part that the defendant objected to in this in this case it could be in section c but even then even if the information in that report is considered testimonial crawford only applies to testimonial hearsay and frankly the information see is open source information i'm getting information at the defendant on dating websites things of that nature the government's  would be there there really aren't any statements in those sections as well there are no there's no analysis of the data and more importantly any conclusions reached as a result your honour's i see that amount of times one quick question the e mail in question here that had the attachment the detective opened was that one that the defendant had sent to somebody else it was ok it was an e mail that was transmitted to somebody else that generated the cyber tip line report and that e mail and all the other contents of the g mail account more than obtained via a search warrant to google emitted without objection a trial thank you i ask you about that and that's my understanding i thought from reading this from the cyber tip report that the  hashing was done at the time that the images were uploaded and what both google and the national center of said is there isn't any indication whether that e mail itself was then sent or not sent the face of the e the cyber to pla and he then post it online or something is that a violation of my property rights in any the intended recipient you know you send a letter to somebody and they share it with other people or they publish it in some manner has the have the property rights of the sender been violated anyway not sure they have because the intended recipient did that though i mean i guess what i'm driving at is isn't the letter at that point the property of the recipient and if that is true and if it's true that the email in this case was sent and we're going to do this sort of by analogy application of trespass law why wouldn't it be the case that mr miller no longer had a property interest in the mail on its attachments once he sent it to whomever he sent it to because the trust passer in this case is not the person he sent to the trespasser in this case is the government google as well but the government when they the they got this is file is taken  as right as the uploads it hash value kicks in after you takes it shuts down the account immediately now whether that email through other evidence made its way to larry board or whoever it was  i believe that is in the record to be misled her is right about that i seem to recall that but the the i think the trespasser is then i mean trespass doctrine yes it is it yours i mean that that's what do you have a property right and what's to get in there before it's risk for it's it's delivered and that's what i would knowledge as to as it was taken before but if larry ward went to the police then i think there's a whole different question that i would have to start thinking hard it's not that the report if the whole report was automated no one did anything after all data yes i agree but that's not what this is this is a compilation of of things in just because the analyst used algorithms essentially what happened analysts used algorithms instead of copying and pasting and going to the internet the analysts short kind of that were going to machine algorithm but i wouldn't knowledge as that to a drug test you're using machines to come to your conclusions this analysts use machines to come to her conclusions put in a report and then i didn't get to cross examine her on the way all that works where the conclusions they seem to just be automated statements to conclude including in section three the conclusion that is most prejudicial is that the ip addresses resolve back to this latitude and longitude and then there's a worse conclusion of that when the government stands up and says that's the fence house when in fact wasn't which in my mind is further interpretation of the data by the government on rebuttal when i can't cross examine but when i read the the several and to prepare you can you can draw that conclusion from what the report says but that's a slightly different question than what the report itself says the report has information about the geo location for example that appear to be automated now the fact that somebody then looks at this report and draws a conclusion from but that doesn't mean the report has the words of the conclusion in it which i would think then would be a statement i think it does have that conclusion in it because it's saying this ip address reaches this launched a lot of tude in my main point is that this report has an the miller's house there they give you a general area and they give you many of them the geo location device if you like ten different options now if a computer picked out one of those options then that computer was preprogrammed with tunnel vision and i would want to cross about that