W.D.N.Y.: Declining to go as far as the S.D.N.Y., court orders hearing on whether def knew of AOL’s TOS that it reports child porn

AOL’s TOS is a waiver of a reasonable expectation of privacy in images transmitted through AOL. They have the right to look at them and report suspected child pornography to NCMEC. United States v. Heleniak, 2015 U.S. Dist. LEXIS 15354 (W.D. N.Y. February 9, 2015):

Here, the setting differs from most criminal cases because the consent is given not directly to a Government investigator but to a third party, as a condition of use of the service provided by that third party. As Judge Scheindlin posed in DiTomasso, supra, 2014 U.S. Dist. LEXIS 152505, at *24 (emphasis in original omitted), the question is “what [the typically reasonable person] consented to” by agreeing to AOL’s terms of service, whether he consented to a search by AOL in a law enforcement capacity, id. at *24-25. The text of both the terms of service and the community guidelines are very general and do not state that others may be involved in the screening of a member’s e-mail to enforce legal and AOL member standards.

The Government relies upon DiTomasso (Docket No. 51, Gov’t Response at 2) and its holding that, while there is constitutionally recognized expectation of privacy in e-mails, 2014 U.S. Dist. LEXIS 152505, at *11-18, 24, the defendant there consented to AOL’s search as a Government agent when that defendant accepted AOL’s terms of use notifying him of AOL’s cooperation with the Government, id. at *24-28, concluding that “a reasonable person familiar with AOL’s policy would understand that by agreeing to the policy, he was consenting not just to monitoring by AOL as an ISP, but also to monitoring by AOL as a government agent,” id. at *28. Even if this Court accepts that conclusion, there are issues of fact whether this defendant was familiar with AOL’s policy to make his use of the service consent to search by a Government agent. Even if, by using AOL’s services defendant consented to AOL’s search and cooperation with the Government, that consent may not include consenting to a search by a third party (NCMEC) and reference of his e-mails to another government (here, referral to the New York State Attorney General). This Court disagrees with the Government that this issue can be decided as a matter of law. Whether this defendant consented to AOL searching his e-mail as a Government agent raises questions of fact for an evidentiary hearing.