[00:00:08] Speaker 02: Good morning, Your Honors. [00:00:09] Speaker 02: May it please the Court, Devin Burstein, on behalf of Mr. Wilson. [00:00:16] Speaker 02: Your Honors, as the Supreme Court clearly stated in Hinton v. Alabama, criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts for introduction of expert evidence. [00:00:36] Speaker 02: That is this case. [00:00:39] Speaker 02: At the time of the suppression hearing in state court, given the cutting edge technology at issue, the request from the defendant, and the funds to hire an expert, trial counsel was constitutionally ineffective for failing to obtain a computer forensics expert. [00:00:59] Speaker 02: It was not a tactical decision and fell below the standard for competent representation. [00:01:05] Speaker 02: Moreover, [00:01:06] Speaker 02: With an expert, there was a reasonable probability that the court would have granted the suppression motion because it would have found, as it should have found, a significant expansion. [00:01:18] Speaker 02: Accordingly, we meet both prongs of the Strickland test, and this court should reverse. [00:01:26] Speaker 02: The clearly established federal law here is beyond dispute. [00:01:31] Speaker 02: It begins with Strickland and ends with Kimmelman. [00:01:35] Speaker 02: Strickland, of course, sets forth the familiar two-pronged test for ineffective assistance of counsel and then the Supreme Court's decision in Kimmelman applies that when the basis for ineffective assistance is failure to properly litigate a Fourth Amendment claim. [00:01:53] Speaker 02: Turning first then to the first prong, beginning with deficiency. [00:01:59] Speaker 02: This is what counsel candidly admits in his declaration. [00:02:04] Speaker 02: His admissions themselves are uncontested. [00:02:09] Speaker 02: Quote, I did not have the personal expertise in computer forensics to discuss hashing technology. [00:02:15] Speaker 02: I was aware that the state would call an expert. [00:02:19] Speaker 02: I had no tactical reason to not have expert assistance at the suppression hearing. [00:02:24] Speaker 02: I should have had one. [00:02:25] Speaker 02: Now that statement in and of itself is borne out by what happened at the suppression hearing. [00:02:32] Speaker 02: We have councils, [00:02:35] Speaker 02: I'll use the term muddled, cross-examination of the state's expert, which really went nowhere. [00:02:43] Speaker 02: I mean, there's the line, and I chuckle to myself every time I read it about the tomato plant, you know, where the expert's going. [00:02:50] Speaker 02: I don't know what you're talking about, sir. [00:02:54] Speaker 02: Thing is a tomato plant. [00:02:55] Speaker 02: You're not a tomato plant. [00:02:57] Speaker 02: And then counsel's forced to basically concede, maybe I'm not understanding. [00:03:02] Speaker 02: That's the quote. [00:03:03] Speaker 02: And respectfully, there was no maybe about it. [00:03:06] Speaker 02: He didn't get it. [00:03:07] Speaker 02: We also know that it was deficient because the proper evidence, the scientifically accurate evidence, didn't get before the deciding court, the superior court in that case. [00:03:21] Speaker 02: And that brings us with deficiency established, [00:03:24] Speaker 02: straight to the prejudice prong. [00:03:25] Speaker 02: And I think really that's the crux of the matter here, if we're looking at it candidly. [00:03:32] Speaker 02: So what Kimmelman says, the Supreme Court's controlling precedent says, is when you look at prejudice under Strickland based on the Fourth Amendment claim, the question is, quote, whether the Fourth Amendment claim is meritorious and there is a reasonable probability that the verdict would have been different absent the excludable evidence. [00:03:54] Speaker 02: We know the answer is yes. [00:03:55] Speaker 02: We know it many different ways. [00:03:57] Speaker 02: But certainly, we know that it's meritorious based on this court's analysis in Wilson, the federal counterpart to this state case. [00:04:09] Speaker 02: And just a step back, I think the court's well aware, this single search [00:04:16] Speaker 02: resulted in both cases. [00:04:17] Speaker 02: There's not two different searches. [00:04:18] Speaker 02: It's the identical search. [00:04:19] Speaker 02: So we know that from Wilson, there was a significant expansion. [00:04:25] Speaker 02: What's clear is that the evidence for the Superior Court to find that significant expansion didn't get into the record. [00:04:33] Speaker 00: But didn't the DHS expert essentially say the same thing that your expert would have testified? [00:04:40] Speaker 00: No, not at all. [00:04:42] Speaker 02: And that's where the district court's main error is. [00:04:45] Speaker 00: I mean, he testified that you can, without looking at the image, look, there's digital images, you see it, but then if you look underneath, you can use binary zero to one numbers or hexadecimals, whatever it is, and each one has unique numbers. [00:04:57] Speaker 00: And I think that's what the agent testified was. [00:05:00] Speaker 00: You don't have to look at it. [00:05:01] Speaker 00: We know what this is. [00:05:02] Speaker 00: This represents, and I think he said it's virtually nil, that different images would have the same hash value. [00:05:11] Speaker 00: I mean, it's kind of like DNA, right? [00:05:15] Speaker 00: You know, you wouldn't know personally, you know, an expert says this is DNA. [00:05:21] Speaker 00: Someone's DNA is not the same as another person's DNA, you know. [00:05:24] Speaker 00: And that's what seems like the DHS expert testified and said, look, we know by hash value that this thing is child pornography. [00:05:30] Speaker 00: You don't have to look at it. [00:05:31] Speaker 00: It is because the hash value, they're almost never identical and this is what it is. [00:05:35] Speaker 00: And it seems like he testified to the same thing. [00:05:37] Speaker 00: And the difference here is maybe the, you know, the difficulty of applying, you know, [00:05:43] Speaker 00: Fourth amendment to this new fangle technology. [00:05:46] Speaker 02: That's the difference of the different results from our circuit here and and the state court So there's two answers to that the first part of it is what the expert actually said which was misleading and [00:06:03] Speaker 02: not misleading, intentionally misleading, but misled the California courts. [00:06:09] Speaker 02: The second part is not just what the experts said, but what was missing, right? [00:06:15] Speaker 02: Starting, I'll get to both. [00:06:17] Speaker 02: Starting with the quote at ER 236, the prosecutor asks, Google system goes and finds a picture that has the exact same digital fingerprint. [00:06:26] Speaker 02: And I can say, oh, well, that second picture is this child pornography that I just saw in picture A because they have the same hash values. [00:06:37] Speaker 02: and the expert answers correct. [00:06:40] Speaker 02: That leaves the impression that somebody had seen the images in Mr. Wilson's files. [00:06:47] Speaker 02: And that's the basic problem. [00:06:49] Speaker 02: that why you needed a defense expert, because that's what's not clear. [00:06:53] Speaker 02: What's not clear is that nobody had ever seen the images in Mr. Wilson's files. [00:07:00] Speaker 02: Somebody at some time, we don't know, saw some other files in some other images, but nobody saw [00:07:09] Speaker 02: what was in Mr. Wilson's files, right? [00:07:11] Speaker 02: It would be like in Walter. [00:07:13] Speaker 02: Somebody, some other time saw some other films with similar markings, but nobody opened those films. [00:07:19] Speaker 00: It had the same hashtag as a previously identified child pornography. [00:07:23] Speaker 00: And the agent says it's virtually nil that they would have the same. [00:07:28] Speaker 02: It's not just that. [00:07:29] Speaker 02: I agree with you on that. [00:07:30] Speaker 00: If someone tells me this has the same hash value as child pornography, I don't need to see it. [00:07:35] Speaker 00: I will accept it. [00:07:36] Speaker 02: You don't, but that's wrong. [00:07:39] Speaker 02: That's scientifically, objectively wrong. [00:07:42] Speaker 02: This court said why it's wrong, but that's the second part. [00:07:45] Speaker 00: Well, that's applying, you know, again, to this newfangled technology, how it is. [00:07:50] Speaker 00: But, I mean, the agent testifies it's virtually nil that they would have the same digital hash if they're the same. [00:07:58] Speaker 02: But that's not enough. [00:07:59] Speaker 02: That's the problem. [00:08:00] Speaker 02: Yes, they have the same digital hash. [00:08:02] Speaker 02: Let's look at, and maybe this will be a better way to explain what I'm trying to say. [00:08:06] Speaker 02: If you look at the California Appeal at Court's decision on this, we don't have a reasoned decision to look through, but let's look through to that. [00:08:17] Speaker 02: This is what they say, quote, [00:08:19] Speaker 02: This is what they say based on the record before them as they understood the technology. [00:08:24] Speaker 02: Based on the assigned numerical values or digital fingerprints, they are representative of the contents depicted in the photographs themselves. [00:08:34] Speaker 02: The government gained no new material information by viewing that image. [00:08:37] Speaker 02: That's ER 1174 and 1175. [00:08:40] Speaker 02: That's just wrong. [00:08:42] Speaker 02: That's the impression that was left, was that the digital hash somehow let them know what the contents of the photo was. [00:08:54] Speaker 00: But I mean, yes, for the digital hash tag, you don't know, is this a underage girl, underage boy, what are they doing? [00:09:01] Speaker 00: Yes, we don't know that, but we do know [00:09:04] Speaker 00: It has the same hash value as a file that depicts child pornography. [00:09:09] Speaker 02: No. [00:09:10] Speaker 02: No, we don't. [00:09:11] Speaker 02: We know that it has the same hash value as a file that somebody thought may have fit the definition. [00:09:18] Speaker 02: That is a very different thing. [00:09:20] Speaker 02: Let's look at what this court has said about it. [00:09:24] Speaker 02: First, the government search exceeded, that I'm going to quote directly, [00:09:27] Speaker 02: First, the government's search exceeded the scope of the antecedent private search because it allowed the government to learn new critical information that it used first to obtain a warrant and then to prosecute Wilson. [00:09:38] Speaker 02: I'm just going to pause. [00:09:39] Speaker 02: You can't hold up a hash value and say, ladies and gentlemen of the jury, 123 XYZ. [00:09:45] Speaker 00: But this is for probable cause. [00:09:47] Speaker 00: We're not talking about the guilt phase here. [00:09:49] Speaker 00: We're saying probable cause, right? [00:09:52] Speaker 00: to search. [00:09:53] Speaker 00: That's what you're disputing here. [00:09:54] Speaker 02: Well, we're not, no, because there was no warrant, so probable cause is irrelevant. [00:09:57] Speaker 00: Well, I mean, for them, for the officer to look at, compare the two. [00:10:02] Speaker 02: I understand your point. [00:10:04] Speaker 02: Keep going with the court. [00:10:05] Speaker 02: Second, this is really the key that wasn't before the court also. [00:10:11] Speaker 02: Second, direct quote from Wilson. [00:10:13] Speaker 02: The government search also expanded the scope of the antecedent private search because the government agent viewed Wilson's email attachment, even though no Google employee or other person had done so, thereby exceeding any earlier privacy intrusion. [00:10:32] Speaker 02: That's that second part. [00:10:33] Speaker 02: They looked at someone else's files. [00:10:35] Speaker 02: It wasn't that they looked at the same file. [00:10:39] Speaker 02: Roloff would have explained that and made that clear. [00:10:43] Speaker 02: If you go to what this court held in Wilson, the whole thing about these rights are personal rights. [00:10:50] Speaker 02: So if I go and read her version of Catcher of the Rye, [00:10:56] Speaker 02: It doesn't mean I can be a police officer and then go read your version of Catcher in the Rye in your library. [00:11:01] Speaker 02: These are personal rights. [00:11:03] Speaker 02: Roloff would have explained that key thing that nobody looked at the files in Wilson's thing. [00:11:10] Speaker 02: All somebody, we don't know who, we don't know when, we don't know where, we don't know under what circumstances, looked at somebody else's files. [00:11:18] Speaker 02: This has to be an expansion. [00:11:21] Speaker 02: It's by definition an expansion. [00:11:23] Speaker 02: That information never got [00:11:25] Speaker 02: before the deciding courts in California. [00:11:28] Speaker 02: Why? [00:11:30] Speaker 02: Because he didn't call an expert. [00:11:32] Speaker 02: He knew the state was going to have an expert. [00:11:34] Speaker 02: He knew he didn't know what he was talking about. [00:11:36] Speaker 02: And worse of all, he knew that in the federal court, they had lost without an expert. [00:11:44] Speaker 02: In district court, this court reversed in Wilson. [00:11:47] Speaker 02: So we know those things. [00:11:49] Speaker 02: I should have had an expert. [00:11:51] Speaker 02: One of the craziest things about this is it's in the record. [00:11:54] Speaker 02: Luke Wilson asked him for an expert. [00:11:57] Speaker 02: This was privately retained counsel. [00:11:59] Speaker 02: He said, get an expert. [00:12:01] Speaker 02: There's zero tactical reason. [00:12:04] Speaker 02: So then we're only in Kimmelman land. [00:12:07] Speaker 02: We're only in Kimmelman land. [00:12:08] Speaker 02: And the only question for this court is, is it meritorious? [00:12:12] Speaker 02: You know it's meritorious. [00:12:13] Speaker 02: Without that evidence, could it have had a different verdict? [00:12:16] Speaker 02: Of course. [00:12:17] Speaker 02: Because all of the digital evidence, every email message, all of it, [00:12:23] Speaker 02: all comes back to that search. [00:12:25] Speaker 03: So just specifically, what would the expert have said? [00:12:29] Speaker 03: That the hashtag that was associated with the first child pornography was not part of Wilson's file? [00:12:38] Speaker 02: Right. [00:12:38] Speaker 03: And that you couldn't see who the individuals were by looking at the hashtag? [00:12:43] Speaker 03: Is that what the expert would have said? [00:12:45] Speaker 02: And more. [00:12:45] Speaker 03: And what else specifically? [00:12:48] Speaker 02: Opening a file or set of files provides substantial additional information beyond attached value to the observer. [00:12:55] Speaker 03: Right, in your brief you said the ethnicity is the age of the people in the file. [00:13:02] Speaker 03: If anything beyond, obviously you can't see the picture, you just have a label, child pornography. [00:13:08] Speaker 03: So what else specifically would the expert have said? [00:13:12] Speaker 02: He would have talked about the fact that nobody saw the files. [00:13:16] Speaker 03: OK, nobody saw the files. [00:13:18] Speaker 03: And the first file that was labeled as child pornography, we don't know when it was labeled or by whom. [00:13:25] Speaker 03: And it wasn't Wilson's file. [00:13:28] Speaker 03: The hashtag on Wilson's file was identical. [00:13:34] Speaker 03: And we know that it probably means it's the same image. [00:13:38] Speaker 03: But nobody looked at the image. [00:13:41] Speaker 03: Is that what the expert would have said? [00:13:44] Speaker 02: among other things. [00:13:45] Speaker 03: OK, what other things? [00:13:46] Speaker 02: You would have talked also about the fact that it is impossible to determine whether a file is in fact child pornography without opening it simply based on a hash match. [00:13:58] Speaker 02: That's at ER 1222. [00:14:00] Speaker 03: OK. [00:14:02] Speaker 03: But they know that the first hashtag was labeled child pornography and had the same hashtag and there was testimony that it would be the same image. [00:14:15] Speaker 03: Would he say it isn't the same image? [00:14:19] Speaker 02: Your question is, would he say it wasn't the same file? [00:14:24] Speaker 03: It wasn't the same image. [00:14:25] Speaker 03: So the hashtag, if I'm understanding correctly, says the image is child pornography. [00:14:30] Speaker 03: The same hashtag is in Wilson's file. [00:14:33] Speaker 03: And so it must be child pornography. [00:14:38] Speaker 03: If the first one was like, well, child pornography, then this one's child pornography. [00:14:41] Speaker 02: See, that's another place that the leap is happening, that's an unjustified leap. [00:14:46] Speaker 02: Because that's what I just quoted you, Judge Akuta. [00:14:49] Speaker 02: Nobody can say, based on the first hash match, that it is, in fact, child pornography. [00:14:55] Speaker 03: But they know it's the same image, right? [00:14:57] Speaker 03: Would the expert have testified it wasn't the same image? [00:15:02] Speaker 02: The extra, same. [00:15:03] Speaker 02: The expert would, I'm getting hung up on the word same. [00:15:06] Speaker 02: The expert would agree that the hash value indicates that it was, it was a, it's not the same file in the sense that it's a different person. [00:15:18] Speaker 03: It's not the same file, but it's the same image. [00:15:20] Speaker 02: Right. [00:15:20] Speaker 02: I think that's fair. [00:15:21] Speaker 03: Okay. [00:15:24] Speaker 02: We got there. [00:15:25] Speaker 03: Thank you. [00:15:27] Speaker 02: Yes, thank you. [00:15:29] Speaker 02: So basically, I mean, our position here is that. [00:15:32] Speaker 02: I mean, I'm happy to talk about any other issues. [00:15:36] Speaker 02: If the court has questions on notice or NAPU or any of the other things, but obviously, it's a very unique circumstance to have a directly on point Ninth Circuit decision holding that this search is unconstitutional. [00:15:49] Speaker 02: And we see a bungled effort to make the same points in state court. [00:15:53] Speaker 02: We have concessions from [00:15:54] Speaker 02: trial counsel and massive consequences. [00:15:56] Speaker 02: So we think we easily meet the Strickland test as applied through Kimmelman. [00:16:01] Speaker 02: I'll save the rest of my time for rebuttal if there's no other questions. [00:16:06] Speaker 02: Thank you. [00:16:16] Speaker 04: Good morning. [00:16:17] Speaker 04: May it please the court, Alana Butler on behalf of respondent. [00:16:22] Speaker 04: First, we should just acknowledge the lens with which we are looking through this very issue, which is 2254. [00:16:27] Speaker 04: So in this instance, this issue was presented to the California Supreme Court. [00:16:34] Speaker 04: The California Supreme Court denied the issue in a silent denial on the merits. [00:16:38] Speaker 04: And as a result of that, the issue is framed as whether or not that denial was an unreasonable application or contrary to United States Supreme Court precedent. [00:16:50] Speaker 04: With respect to the state court's finding that counsel was not deficient as a result of not calling an expert, that decision was not objectively unreasonable. [00:17:03] Speaker 04: This wasn't a matter of confusion. [00:17:05] Speaker 04: There is a declaration that was submitted by Google that outlined the procedures for this very, very clearly. [00:17:11] Speaker 04: It indicated that when a known image of child pornography is viewed by somebody as a Google employee, [00:17:19] Speaker 04: who is trained in federal standards for identifying child pornography, they assign that image a classification. [00:17:28] Speaker 04: And in this case, the classification that was assigned to this image was A1, which denoted that the image contained a prepubescent child engaging in sexual conduct. [00:17:42] Speaker 04: Once that designation is made, then it is run through a program that is [00:17:49] Speaker 04: creates the hash value. [00:17:51] Speaker 04: And as the expert testified in this case, the hash value is akin to a fingerprint. [00:17:57] Speaker 04: And so once that value is stored in a depository, that gets run through all the types of attachments. [00:18:06] Speaker 04: And if that same hash value is found in a person's account, that means that that same exact image had been previously designated [00:18:18] Speaker 04: as child pornography. [00:18:20] Speaker 04: Now, with respect to what this additional expert might have supplied, as the district court found, it was merely cumulative because the evidence that was presented at this hearing clearly showed that nobody was saying that another person looked at the image, there was no additional identifiers of the image, it was just that [00:18:46] Speaker 04: Because A1 was a designation for this image that was given this fingerprint, when we find this fingerprint again, therefore that means the image is A1. [00:18:58] Speaker 04: It is the exact same thing. [00:19:02] Speaker 04: Now with respect to the assertion that, oh, if he had consulted an expert, the cross-examination would have been better. [00:19:11] Speaker 04: Notably absent from the declarations that have been supplied by Mr. Wilson is any specific reference for what could have additionally been adduced during that cross examination. [00:19:24] Speaker 04: And I will agree with my friend across the aisle that the examination was not exactly artful. [00:19:32] Speaker 04: And in my experience, when a witness says, I'm not trying to be difficult, that usually means that the witness is trying to be difficult. [00:19:39] Speaker 04: And there was a lot of back and forth with Mr. Boyce referring to a database which would technically be a repository. [00:19:49] Speaker 04: And there was some miscommunications in that respect. [00:19:53] Speaker 04: But if we take a look at the evidence that was actually adduced from the expert witness on cross-examination, it's pretty much everything that is contained in the expert's declaration that was attached to the position. [00:20:07] Speaker 04: So for example, [00:20:09] Speaker 04: On cross-examination, the expert testified the hash value has nothing to do with a description of the contents of the file. [00:20:18] Speaker 04: That's exactly what Mr. Willough said. [00:20:21] Speaker 04: He further clarified somebody makes a subjective determination that an image is child pornography, and then it is assigned a hash value. [00:20:31] Speaker 04: Again, that is the same thing that the expert would have testified to that Mr. Wilson has set forward. [00:20:38] Speaker 04: He also says, a hash calculator does not determine the content of a vial. [00:20:42] Speaker 04: A human determines whether it's child pornography. [00:20:47] Speaker 04: So when we look at what was adduced, it was pretty much the same thing as what the declaration indicated. [00:20:55] Speaker 04: Now the declaration for Mr. Roloff does go into more detail. [00:20:59] Speaker 04: It says, well, [00:21:00] Speaker 04: You know, you can't tell who's in the picture, where the picture was, what the date and time of the picture was. [00:21:06] Speaker 04: But where the trial court in this instance interpreted the law to mean was that it was sufficient for the prosecution to know or the detective to know that this was just child pornography. [00:21:24] Speaker 04: Once it was identified as contraband, that was really the only thing that was important at that point. [00:21:30] Speaker 04: And what's interesting is we've talked about United States versus Wilson. [00:21:35] Speaker 04: There's a clear split in authority as to what this expansion really means. [00:21:42] Speaker 04: There are some courts that say no, just the fact that we know that this is child pornography. [00:21:47] Speaker 04: from the hash value, it's not a significant expansion if it's open. [00:21:52] Speaker 04: This court in Wilson, and I believe that there's another court that agreed with this court as well, said no, you can tell more from the image because you're having somebody look at it in more detail. [00:22:04] Speaker 04: But that just comes down to a split of legal authority that doesn't come down to what the expert might have testified in this case. [00:22:13] Speaker 04: And in looking at the court's ruling, it clearly understood what the limitations were of having viewed the picture afterwards. [00:22:23] Speaker 04: And there's nothing that the expert would have said that really wasn't already said otherwise and that would have changed its mind. [00:22:32] Speaker 01: As for the legal authority you referred to, is it to a legal question? [00:22:36] Speaker 01: And part of what has confused me here is that the nature of the relationship between the hash value and actually viewing the image seems to be what they're talking about. [00:22:51] Speaker 01: And I don't understand that to be a legal question. [00:22:55] Speaker 04: I think the legal question is whether opening the document or opening the file leads to a substantial expansion of the price. [00:23:05] Speaker 01: It has certainly legal implications. [00:23:07] Speaker 01: Right. [00:23:08] Speaker 01: But the question is to the equivalence between the hash value and looking at the photo itself. [00:23:16] Speaker 01: And I confess I've spent more time than I want to care [00:23:19] Speaker 01: acknowledge trying to figure this out because I'm not native to this world. [00:23:27] Speaker 01: That sounds like essentially a factual question as to which courts have maybe landed on different conclusions in establishing the legal implications of it. [00:23:38] Speaker 04: I think as far as it, from where I stand, it not being so much a factual question is because all these situations are kind of lining up the same. [00:23:48] Speaker 04: So usually in a Fourth Amendment claim, there can be a multitude of facts that can influence the outcome. [00:23:55] Speaker 04: Here the courts that have looked at this, they've all been pretty much the same where there's been an initial designation of an image. [00:24:04] Speaker 04: It's assigned a hash or a fingerprint value. [00:24:06] Speaker 04: That value is found in somebody else's file and therefore that designation applies to that particular image. [00:24:16] Speaker 01: And so as far as there being an... You don't need... I mean, the argument over really is you get something more. [00:24:25] Speaker 01: Do you establish the legal standard you have to establish if you actually have somebody look at this particular picture? [00:24:35] Speaker 04: And I think where the courts have parted ways is there are some courts that say, yes, when you look at these images and you find that something more, [00:24:44] Speaker 04: whether it be time, date, circumstances, the victim, that constitutes an expansion. [00:24:52] Speaker 04: Whereas other courts have found, no, just the very fact that it has matched to that designation of child pornography, it doesn't constitute a substantial expansion. [00:25:04] Speaker 04: So I think that the point is that the expert here, although he might have gone into more detail about those things, the court in this case, the state court, [00:25:15] Speaker 04: Several of the circuit courts have all come to the conclusion that, no, just the fact that we know that this is child pornography, that's sufficient. [00:25:23] Speaker 04: And then any additional information that is received, that's not an expansion of the scope of the initial private search. [00:25:31] Speaker 01: Could an expert have spoken? [00:25:33] Speaker 01: And again, I'm betraying my own ignorance. [00:25:38] Speaker 01: Could an expert have spoken to the question of the level of reliability of the hash value? [00:25:46] Speaker 01: You talked about A1, that's simpler to remember than the other numbers, so I'll use that. [00:25:51] Speaker 01: Can we take it to the bank that A1 is going to lead us to a photo that constitutes child pornography without fail? [00:26:02] Speaker 04: And that was one of the arguments that the defense made down below, that they said that we don't know [00:26:08] Speaker 04: who's making this A1 designation. [00:26:10] Speaker 04: It could, and I believe that council had said it could have been a summer intern for all we know who had made that designation. [00:26:17] Speaker 04: Now, the Google declaration indicates otherwise that these are people who are well trained in federal standards. [00:26:23] Speaker 01: Do we have any record? [00:26:24] Speaker 01: I mean, does anybody look backwards? [00:26:28] Speaker 01: I guess it would have, couldn't be the government agents. [00:26:30] Speaker 01: It would have to be Google. [00:26:31] Speaker 01: Does Google have proof of a scientific nature saying, [00:26:38] Speaker 01: We've labeled 1,000 photos A1, and we looked at those photos, and they all constitute child pornography. [00:26:47] Speaker 04: That was not a part of this record, and I'm not aware one way or another if that exists. [00:26:52] Speaker 04: But given the Google declaration in this case saying that their employees are trained under federal standards in order to identify this, that was sufficient for the court. [00:27:03] Speaker 04: And since we are on an IAC claim, [00:27:06] Speaker 04: as to whether or not counsel properly litigated this hearing, counsel did make that very argument that said that there may not be a reliability for that initial designation. [00:27:16] Speaker 04: But that's not something that the defense expert would have spoken on, at least not to my recollection of what was contained in his declaration. [00:27:27] Speaker 04: It was purely, what else could this image have shown? [00:27:32] Speaker 04: But to that point as well, there was a lot before the court, not only from the expert, but also from the arguments and the reply brief from counsel indicating much of the facts that Roloff had said. [00:27:46] Speaker 04: Mr. Boyce had indicated in his reply brief that the agent had opened and viewed the files which Google had not done, which was also part of the Google declaration, and had exceeded the scope of the search. [00:27:59] Speaker 04: He also in the reply brief indicated that the hash value is not the equivalent of the image. [00:28:06] Speaker 04: And when the agent opened the attachment, he would have been fully apprised of its contents, whatever they were. [00:28:13] Speaker 04: So the arguments were before the court. [00:28:18] Speaker 04: Mr. Boyce did seem to understand. [00:28:23] Speaker 04: the technology involved. [00:28:25] Speaker 04: And although the cross-examination may not have gone flawlessly, he was able to elicit all the points that he needed to make to show that there was much more to this picture than just the hashing technology. [00:28:40] Speaker 04: Now, with respect to prejudice, first and foremost, the trial court made its ruling on two different grounds, which were alternative in nature. [00:28:52] Speaker 04: The first ground, it did find that Mr. Wilson did not have a reasonable expectation of privacy, and that had nothing to do whether or not the scope of the search was expanded, has nothing to do with the hash values. [00:29:10] Speaker 04: So there was this alternative [00:29:12] Speaker 04: finding and although I believe in Mr. Wilson's briefing, he indicated that was something that the prosecution had conceded. [00:29:20] Speaker 04: I just wanted to clarify that the prosecution did concede that he had a subjective [00:29:27] Speaker 04: expectation of privacy in the files, but not a reasonable expectation of privacy in the files. [00:29:33] Speaker 04: So we have those two different rulings for which the expert testimony would not have made any difference. [00:29:41] Speaker 04: Additionally, as I discussed, the cross-examination of the expert adduced all the salient points that the expert declaration in this case set forth. [00:29:54] Speaker 04: If we look at the trial court's ruling, although some of the briefing by my friend on the other side of the aisle seems to suggest that the trial court was confused, it was absolutely not. [00:30:07] Speaker 04: It noted we have the A1 classification, which meant that somebody had found that picture to be an image of a prepubescent child engaging in sexual activity, that it was assigned the hash value, [00:30:23] Speaker 04: that hash value is found in Wilson's files, and those were the files that were turned over to the authorities. [00:30:30] Speaker 04: So the court clearly had a very thorough understanding of the technology involved, but simply just made a decision based on the US Supreme Court case, which is, you know, shown to be the subjective [00:30:46] Speaker 04: a conflict among circuits of whether or not that actually viewing the files was an expansion of the search. [00:30:53] Speaker 04: So I would say that under these circumstances, the California Supreme Court's denial of this claim was not contrary to or an unreasonable application of United States Supreme Court authority, the district court properly found as such, and we would request that the district court's decision be affirmed. [00:31:16] Speaker 04: And unless there are any further questions on this issue or any other, I am prepared to yield the remainder of my time. [00:31:23] Speaker 04: Thank you. [00:31:24] Speaker 04: Thank you. [00:31:31] Speaker 02: Okay. [00:31:35] Speaker 02: A few points. [00:31:39] Speaker 02: We've talked a lot. [00:31:41] Speaker 02: My colleague just talked a lot about trial counsel's arguments. [00:31:45] Speaker 02: He made this argument in his reply beef. [00:31:47] Speaker 02: He made that argument in his reply beef. [00:31:49] Speaker 02: That whole point actually eners to our benefit, because arguments of counsel are not evidence. [00:31:56] Speaker 02: And the whole point is he did not call an expert, so he had no evidence to back up these arguments. [00:32:04] Speaker 02: That shows the deficiency and the prejudice. [00:32:07] Speaker 02: There was a lot of talk about this A1 classification. [00:32:12] Speaker 02: So let's read what this court has already said about that and rejected the very argument you just heard. [00:32:19] Speaker 02: Google's characterization of Wilson's email attachments as A1 functioned as a label for the images in the same way that the boxes describing the films in Walter suggested that the images on the films were obscene. [00:32:34] Speaker 02: The A1 labels, in fact, provided less information about the images' contents than did the boxes in Walter, which had explicit description of the contents of the film. [00:32:45] Speaker 02: The A1 labels, in contrast, specified only the general age of the child and the general nature of the act shown. [00:32:52] Speaker 02: There's no statistical evidence, Judge Clifton, as to the extent to which Google's A1 classifications are accurate at all. [00:33:02] Speaker 02: There was a point made by opposing counsel that the cross-examination was not artful, but basically did the job. [00:33:12] Speaker 02: No, it didn't. [00:33:13] Speaker 02: We know that it didn't because none of the information that's in this court's Wilson opinion, that's in Roloff's declaration, was before the court. [00:33:21] Speaker 02: We heard that the California courts firmly understood the technology, just disagreed. [00:33:28] Speaker 02: No, they didn't. [00:33:29] Speaker 02: 1174 through 75. [00:33:33] Speaker 02: California Court of Appeal, I've quoted it once, I'll quote it again. [00:33:36] Speaker 02: It's just dead wrong. [00:33:37] Speaker 02: Because the assigned numerical values or digital fingerprints are representative of the contents depicted in the photographs themselves, the government gained no new material information by viewing the images. [00:33:50] Speaker 02: That is objectively wrong as a scientific fact. [00:33:53] Speaker 02: They thought the images somehow were representative of the contents of the photos. [00:33:59] Speaker 02: That's the language they used. [00:34:00] Speaker 02: That is wrong. [00:34:02] Speaker 01: I think this all comes... Well, it was apparently not wrong in this case. [00:34:07] Speaker 01: Why do we take it to be wrong? [00:34:09] Speaker 01: It was wrong in this case. [00:34:11] Speaker 01: Why was it wrong in this case? [00:34:12] Speaker 02: Because a hash value is not representative of the context depicted in the photographs themselves. [00:34:19] Speaker 01: Were the photographs themselves here child pornography? [00:34:22] Speaker 01: Yes. [00:34:22] Speaker 01: Well, so it wasn't wrong in this case if in fact what they inferred from the hash value was that it was child pornography, and it was child pornography. [00:34:30] Speaker 02: I understand your point, but it's a different point. [00:34:34] Speaker 01: It's a different point, but it's not irrelevant. [00:34:37] Speaker 01: I'm still struggling to figure out, and maybe I termed it in terms of reliability, but could they take it to the bank if they had an A1? [00:34:46] Speaker 01: And you're telling me no when I'm saying, what demonstrates that it's not something you can take to the bank? [00:34:51] Speaker 01: You told me this statement is wrong. [00:34:53] Speaker 01: What proves that it's wrong? [00:34:54] Speaker 02: Judge Berzon does a great job of explaining why you can't take it to the bank. [00:34:59] Speaker 02: You can't, look at the search warrant in this case, which everybody agreed, both the district court and this court, that if you took out the subsequent information and just had the hash information, wouldn't have established probable cause. [00:35:16] Speaker 02: What happened? [00:35:18] Speaker 02: So the agent Thompson had the hash value, then opened it. [00:35:23] Speaker 02: What he used in the search warrant was the [00:35:27] Speaker 02: Contents the information he learned from opening the file He couldn't have just said there's a hash match a one He said in this he did the descriptions that you just heard those came from opening the file [00:35:41] Speaker 02: Judge Berzon's opinion deals with this specifically. [00:35:44] Speaker 02: You couldn't have just used the hash value. [00:35:47] Speaker 02: You needed to open the file. [00:35:49] Speaker 02: She talks about the world of difference between what he knew before opening the file and what he knew after opening the file. [00:35:57] Speaker 02: Can you wrap up? [00:35:58] Speaker 02: Yes. [00:35:59] Speaker 02: OK. [00:35:59] Speaker 02: So I think I was just sitting there, and this is what I could think. [00:36:04] Speaker 02: I think we can narrow it down to this very thing. [00:36:08] Speaker 02: If Roloff had testified. [00:36:11] Speaker 02: and put in all of the information that's in Judge Berzon's opinion, might the trial court have come to a different conclusion? [00:36:19] Speaker 02: That's the question for this court. [00:36:21] Speaker 02: If the answer is yes, we win. [00:36:23] Speaker 02: Thank you. [00:36:24] Speaker 03: I think we have your argument. [00:36:25] Speaker 03: The case of Wilson v. Gamboa is submitted, and the court for this session stands adjourned. [00:36:46] Speaker 03: This court for this session stands adjourned.