D.Md.: Chats on website with a banner that information could be given the government was a waiver of REP

The government monitored Free6.com, a website headquartered in Sweden. Free6 was being used to exchange child pornography, and they actively tried to discourage and stop it. A DHS investigator emailed Sweden asking for help, and the company obliged and gave him administrative privileges to wander all around the website. At the officer’s request, Free6 even added to its banner that it might give the information to the government. Recognizing a reasonable expectation of privacy in email (Warshuk), defendant still had no reasonable expectation in the chats because he was warned there was no privacy. United States v. Bode, 2013 U.S. Dist. LEXIS 118627 (D. Md. August 21, 2013) (court has an opinions page; check back):

To be sure, at least one scholar in the field has argued that it was unwise for Congress to omit a suppression remedy for unlawful interception or access of electronic communications. See Orin Kerr, Lifting the “Fog” of Internet Surveillance Law: How a Suppression Remedy Would Change Computer Crime Law, 54 HASTINGS L.J. 805 (2003). But, the choice was Congress’s to make. This Court does not have the authority to create a suppression remedy where Congress has deliberately omitted one.

In sum, even if I were to find that SA Burdick violated the Wiretap Act or the Stored Communications Act, it would make no difference here. This is because there is no suppression remedy for a violation of either statute in connection with electronic communications.

Defendant’s only potential avenue for suppression is the exclusionary rule in the context of a violation of the Fourth Amendment.

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Although some of the chat messages that SA Burdick read were private messages sent from defendant to other individual users, many of the messages were posted in public chat rooms, where any user of the Free6.com chat service who was logged in could have viewed them
(notably, including every posting of the “-11 radator.jpg” image). “Expectations of privacy in e-mail transmissions depend in large part on the type of e-mail involved and the intended recipient. Messages sent to the public at large in [a] ‘chat room’ . . . lose any semblance of privacy.” United States v. Maxwell, 45 M.J. 406, 418-19 (C.A.A.F. 1996). As one district court observed, in rejecting a claim of Fourth Amendment protection for messages posted in publicly accessible online chat rooms hosted by the internet service provider America Online (“AOL”), the defendant “could not have a reasonable expectation of privacy in the chat rooms,” because “when Defendant engaged in chat room conversations, he ran the risk of speaking to an undercover agent.” United States v. Charbonneau, 979 F. Supp. 1177, 1185 (S.D. Ohio 1997).

Courts have reached the same conclusion with respect to other electronic communications that, by their nature, are readily viewable by the public. See, e.g., United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir.) (holding that defendant had no reasonable expectation of privacy in files on his computer shared over a peer-to-peer file sharing network, because defendant “was clearly aware that LimeWire was a file-sharing program that would allow the public at large to access files in his shared folder unless he took steps to avoid it,” and his “files were . . . entirely exposed to public view; anyone with access to LimeWire could download and view his files without hindrance”) (citing United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2037 (2009)), cert. denied, ___ U.S. ___, 131 S. Ct. 795 (2010); United States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009) (same), cert. denied, 559 U.S. 915 (2010). Accordingly, I conclude that defendant had no reasonable expectation of privacy in messages he sent to public chat rooms on the Free6.com chat service.

Defendant’s private messages to other individual users of the chat service, which are more akin to email, present a somewhat closer question. However, much if not all of the case law, cited supra, which has recognized the possibility of a reasonable expectation of privacy in email, has also recognized that whether a user has a reasonable expectation of privacy in an electronic communications stored or transmitted by a third-party service can be affected by the terms of service at issue. Although the Fourth Circuit reasoned in Hamilton that “one may generally have a reasonable expectation of privacy in email,” 701 F.3d at 408, the defendant in that case did not. The defendant’s email account was provided by his employer, which had adopted a computer usage policy that “expressly provide[d] that users have ‘no expectation of privacy in their use of the Computer System’ and ‘[a]ll information created, sent[,] received, accessed, or stored in the . . . Computer System is subject to inspection and monitoring at any time.'” Id. (quoting policy). Moreover, the defendant “had to acknowledge the policy by pressing a key to proceed to the next step of the log-on process, every time he logged onto his work computer.” Id. Therefore, the Court reasoned that the case was analogous to an earlier case in which the Fourth Circuit “held that a defendant did not have an ‘objectively reasonable’ belief in the privacy of files on an office computer after his employer’s policy put him ‘on notice’ that ‘it would be overseeing his Internet use.'” Id. at 408-09 (quoting United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000)).