S.D.N.Y.: Screen chat service that passed information to NCMEC was still a private actor

Screen chat service that passed information to NCMEC was still a private actor. United States v. Ditomasso, 2015 U.S. Dist. LEXIS 9645 (S.D.N.Y. January 26, 2015):

On October 28, 2014, I ruled that DiTomasso had a reasonable expectation of privacy in the content of both his emails and his chats.² I also ruled, however, that DiTomasso consented to a search by AOL in a law enforcement capacity when he agreed to its terms of use — defeating his suppression motion as to AOL.³ But the motion is still live as to Omegle, and now the Court must resolve the question explicitly reserved in the October 28, 2014 Opinion. Namely, was Omegle operating as an agent of law enforcement when it reviewed screen shots of DiTomasso’s chats and — believing that they contained evidence of child pornography — dispatched three reports to the National Center for Missing and Exploited Children (“NCMEC Reports”)?

2. See United States v. DiTomasso, No. 14 Cr. 160, 2014 U.S. Dist. LEXIS 152505, 2014 WL 5462467 (S.D.N.Y. Oct. 28, 2014).
3. See 2014 U.S. Dist. LEXIS 152505, [WL] at *9.

For the reasons set forth below, I conclude that the answer is no. Omegle’s [monitoring constituted a purely “private search,” beyond the reach of the Fourth Amendment. Accordingly, DiTomasso’s motion to suppress is DENIED.