This mаtter is again before the Court on Defendant Walter Ackerman's Motion to Suppress (Doc. 19). Defendant seeks the suppression of an email and its attachments arguing that they were obtained through an illegal search and seizure. This Court originally denied Defendant's Motion to Suppress finding that AOL and the National Center for Missing and Exploited
On appeal, the Tenth Circuit Court of Appeals reversed and found that NCMEC was a governmental entity. In the alternative, the circuit found that NCMEC acted as a government agent. Finally, the Tenth Circuit found that NCMEC's search expanded AOL's privatе search. Thus, the Tenth Circuit remanded the case. In remanding the case, the Tenth Circuit noted that "hard questions remain to be resolved on remand."
The Court allowed additional briefing by both the government and Defendant. On September 19, 2017, the Court held a hearing. After considering the parties' arguments, the Court finds that Defendant did not have an objectively reasonable expectation of privacy in his email and the four attachments. Thus, NCMEC's search did not violate his Fourth Amendment rights. In the alternative, even if Defendant did have an expectation of privacy and his Fourth Amendment rights were violated, suppression is unwarranted due to the good faith exception. Thus, the Court denies Defendant's Motion to Suppress.
I. Factual and Procedural Background
Defendant Walter Ackerman was a user of AOL Mail and used the screen name "plains66952." To use AOL's services, AOL requires its users to agree to its Terms of Service ("TOS"). As of April 19, 2013, these TOS state that a user must:
a. Comply with applicable laws and regulations and not participate in, facilitate, or further illegal activities;
...
d. Not post content that contains explicit or graphic descriptions or accounts of sexual acts or is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or tortious;
e. Not engage in an activity that is harmful to us or our customers, advertisers, affiliates, vendors, or anyone else
...
To prevent violations and enforсe 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.
AOL employs an Image Detection and Filtering Process ("IDFP"), an automated program that systematically scans emails sent, saved, or forwarded from an AOL account to scan for malware, viruses, and illegal images such as child pornography. As part of this IDFP, AOL developed and maintains a database of hash values associated with child pornography. A hash value is derived from a specific digital file and is an alphanumeric sequence that is unique to that digital file. If an email user sends
On April 22, 2013, AOL's IDFP detected an email sent by "plains66952@aol.com" to "zoefeather@riseup.net," which contained a hash value of previously identified child pornography. AOL's detection system identified one of the four images attached to Defendant's email as child pornography.
AOL then submitted a report to NCMEC through its CyberTipline on April 23, 2013. This report included Defendant's email along with the four attached images. A NCMEC analyst viewed the email and the four attached images and confirmed that all four appeared to be child pornography.
On November 6, 2013, a grand jury indicted Defendant on one count of distribution of child pornography and one count of possession of child pornography. Defendant filed a Motion to Suppress (Dоc. 13). After conducting an evidentiary hearing, this Court denied Defendant's motion.
Defendant then entered into a conditional guilty plea, but he reserved his right to appeal the denial of his motion to suppress. On appeal, Defendant asserted that NCMEC's actions constituted an unreasonable search. The Tenth Circuit agreed and found that NCMEC was a governmental entity, or in the alternative, acted as a governmental agent. Next, it concluded that NCMEC's search exceeded the scope of AOL's private search.
The Tenth Circuit remanded the case and stated that "hard questions remain to be resolved on remand."
II. Analysis
Defendant seeks the suppression of the email and its attachments contending that it was obtained through an illegal search and seizure. The Court will first consider whether Defendant had a reasonable expectation of privacy in his email and four
A. Reasonable Expectation of Privacy
When this Court previously considered whether Defendant had a reasonable expectation of privacy, the Court assumed without deciding that he did. On appeal to the Tenth Circuit, the circuit noted this fact.
"A search only violates an individual's Fourth Amendment rights if he or she has a legitimate expectation of privacy in the area searched."
The government asserts that a search did not occur because Defendant did not have a reasonable expectation of privacy in his email and the four attached images at the time NCMEC reviewed it. The government frames the issue narrowly. It does not rely on the third-party doctrine and agrees that Defendant had an expectation of privacy in his email аccount before AOL terminated his account. Instead, the government argues that Defendant fails to present any evidence that he had a subjective or objective expectation of privacy in the one email and four attachments to that email after AOL (the third-party email provider) terminated his account for violating its TOS.
Defendant testified that he believed his email was private. Thus, with regard to Defendant's subjective belief, he satisfies his burden. The relevant question in this сase is whether Defendant's subjective expectation is objectively reasonable. Narrowed down even further, the question is whether Defendant had an objectively reasonable expectation of privacy in the one email and four attachments after AOL had terminated his account.
In this case, Defendant was a user of AOL and was subject to AOL's TOS. To have an account with AOL, a user must agree to the terms. If AOL updates its TOS, it sends an email to the AOL user that stаtes that AOL is updating its TOS on a certain date and that the user's log-in after that date indicates that the user accepts the new TOS.
Here, Defendant agreed to AOL's TOS by using his email account. The TOS expressly alerted Defendant that he was not to participate or engage in illegal activity. In addition, the TOS provided that a user
In at least two recent cases from different district courts, courts have determined that the existence of a TOS agreement diminishes a user's objectively reasonable expectation of privacy. In United States v. Stratton ,
In Stratton , the court found the Tenth Circuit's reasoning regarding whether an employee had a legitimate expectation of privacy in images he downloaded on a work computer instructive.
Similarly, in United States v. Wilson ,
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.
B. Good Faith Exception
Alternatively, even if Defendant could establish a reasonable expectation of privacy, suppression is unwarranted due to the good faith doctrine. As an initial matter, the parties disagree as to whether the government can assert the good faith doctrine on remand. When this case was initially before this Court, the government argued that even if a search occurred that violated the Fourth Amendment, the good faith exception would be applicable. This Court did not reach the issue and made no rulings in its previous order as to the applicability of the good faith doctrine.
Defеndant appealed this Court's ruling to the Tenth Circuit but did not appeal any ruling on the good faith doctrine as there was no ruling from which to appeal. Instead, Defendant appealed the rulings that NCMEC was not acting as a governmental agent and even if it was, NCMEC's search did not surpass AOL's private search. The Tenth Circuit reversed on both issues. After making its findings, the Tenth Circuit noted that the government could have argued any number of reasons as to why NCMEC's search was still "reasonablе."
"When a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal."
Hеre, there has not been a ruling of law on the applicability of the good faith doctrine. On appeal, neither party could challenge this Court's legal decision on the good faith doctrine because this Court did not address the doctrine. Thus, the law of
Substantively, the government argues that even if NCMEC's review of Defendant's email and the four attachments violated the Fоurth Amendment, suppression is not warranted because NCMEC and law enforcement acted in good faith. Although evidence obtained in violation of the Fourth Amendment generally cannot be used, there are a few exceptions to the Fourth Amendment's exclusionary rule. One of those exceptions is when law enforcement acts in good faith, or in "objectively reasonable reliance," on a statutory scheme.
For this proposition, the government primarily relies upon a United States Supreme Court case, Illinois v. Krull ,
In Keith , the court considered similar facts to this case. There, AOL identified a matching hash value in an email and sent NCMEC a CyberTipline report with the suspect file.
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 reasоnable time during the night or day" and allowed "examination of the premises of ... place of business."
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 inсlude information about the individual, historical reference, geographic location, and any images.
Based on the comprehensive statutory scheme governing NCMEC and its operation of the CyberTipline, NCMEC's conduct in reviewing the email and its four attachments was objectively reasonable and in good faith. NCMEC relied on a statutory scheme allowing it to perform a review. At the time of NCMEC's conduct, it would nоt have known that it was doing something unconstitutional. This conclusion is bolstered because at the time of the events in question (April 2013), no court had even considered NCMEC a governmental
Furthermore, "exclusion has always been our last resort, not our first impulse."
Finally, "[t]he extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct."
IT IS THEREFORE ORDERED that Defendant Walter Ackerman's Motion to Suppress (Doc. 13) is hereby DENIED .
IT IS SO ORDERED .
Notes
A more detailed recitation of facts is set forth in this Court's previous Order. See Doc. 37. Only the facts pertinent to the issues in this Order will be set forth here. Some of these facts are taken from the evidence and testimony in the original hearing on Defendant's motion on May 19 and 20, 2014. Other facts are from this Court's and the Tenth Circuit Court of Appeal's previous opinions. During the hearing in September 2017, the Court did not allow any additional evidence but only heard arguments related to the evidence already before the Court.
It was not until the case was before the Tenth Circuit that it became apparent that AOL only matched one of the four email images with a hash value.
The fact that NCMEC viewed all four of the images, rather than just the one thаt matched AOL's hash value, was an important factor in the Tenth Circuit's analysis.
United States v. Ackerman ,
United States v. Ruiz ,
See Smith v. Maryland ,
United States v. Johnson ,
Id. at *7.
Ackerman ,
United States v. West ,
Wilmer v. Bd. of Cty. Comm'rs of Leavenworth Cty. ,
See United States v. Vanness ,
Krull ,
Keith ,
Krull ,
18 U.S.C. § 2258A(b)(1)-(4).
Ackerman ,
See
The decision in Keith in which the District of Massachusetts found that NCMEC acted as an agent of law enforcement did not occur until November 2013.
Herring v. United States ,
Id. at 141,
Keith ,
Herring ,