D.Kan.: AOL’s TOS deny an objective REP in CP transmitted by email (on remand from CA10)

In the district court’s original opinion, reversed for reconsideration in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), the district court assumed defendant had a reasonable expectation of privacy in his emails. On remand, the court determines that he did not. He was an AOL customer, and AOL’s TOS warn against use of AOL to transmit illegal material. And, “To prevent violations and enforce this TOS and remediate any violations, we can take any technical, legal, and other actions that we deem, in our sole discretion, necessary and appropriate without notice to you.” This amounted to defendant having no reasonable expectation of privacy in child pornography that AOL’s system scanned, separated, and tipped off NCMEC. AOL is, as an email provider, a mandated child pornography reporter. That made AOL’s report and NCMEC’s receipt in good faith reliance on a statutory scheme. United States v. Ackerman, 2017 U.S. Dist. LEXIS 178925 (D. Kan. Oct. 30, 2017):

In this case, AOL’s TOS similarly limits Defendant’s objectively reasonable expectation of privacy. As noted above, the TOS informed Defendant that he must comply with applicable laws and that he could not participate in illegal activities. AOL’s TOS also informed Defendant that if he participated in illegal activities or did not comply with AOL’s TOS, it could take technical, legal, or other actions without notice to him. Thus, the Court concludes that Defendant cannot establish a reasonably objective expectation of privacy in this particular email and its four attachments (containing child pornography) after AOL terminated his account for violating its TOS.

In sum, even though the Tenth Circuit found that NCMEC is a governmental actor and/or entity and exceeded AOL’s private search, this Court finds on remand that Defendant did not have a reasonable expectation of privacy in his email or the four attached images at the time of NCMEC’s search. Because he did not have a reasonable expectation of privacy, NCMEC’s conduct did not cause a violation of the Fourth Amendment and suppression is not warranted.

. . .

Defendant contends that the good faith exception is inapplicable here. He argues that the statutory scheme in Krull is different from the statutory scheme in this case because the statutory scheme in Krull expressly authorized warrantless searches. Specifically, the statute in Krull allowed officials to “inspect” records “at any reasonable time during the night or day” and allowed “examination of the premises of … place of business.” [fn: Krull, 480 U.S. at 343.] In contrast, Defendant contends that the statute here does not authorize warrantless searches but instead simply allows NCMEC to possess contraband.

Defendant’s argument draws too fine of a line. Under 18 U.S.C. § 2258A(a)(1), an electronic service provider is required to provide a report of any apparent child pornography to NCMEC’s CyberTipline. This report may include information about the individual, historical reference, geographic location, and any images. NCMEC is then required to forward this report and information to law enforcement. In the Tenth Circuit’s Ackerman opinion, it noted these statutes and stated that NCMEC is “statutorily authorized to receive contraband (child pornography) knowingly and review its contents intentionally.” It also stated that these statutes were effectively “a statutory grant of special law enforcement authority to a single entity and no other, authorizing and encouraging it to perform functions no other private person or entity may lawfully undertake.” The Tenth Circuit, in determining that NCMEC acted as a governmental agent recognized and acknowledged the breadth of the authority given to NCMEC by statute. In addition, the Tenth Circuit noted that although the statutes do not require NCMEC to open and view the email attachments, “everyone accepts that Congress enabled NCMEC to review [Defendant's] email by excepting the Center from the myriad laws banning the knowing receipt, possession, and viewing of child pornography. Nothing about NCMEC’s actions could possibly have come as a surprise.”

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