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United States v. Ackerman

United States District Court, D. Kansas

July 1, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
WALTER ACKERMAN, Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

This matter comes before the Court on Defendant Walter Ackerman's Motion to Suppress (Doc. 13). Defendant seeks the suppression of an email and its attachments arguing that they were obtained through an illegal search and seizure. Defendant also seeks the suppression of certain statements asserting that he should have been given a Miranda warning because his meeting with law enforcement was a custodial interrogation. The Court held a hearing on May 19 and 20, 2014. Because the Court finds that AOL and the National Center for Missing and Exploited Children ("NCMEC"), the parties who searched Defendant's emails, are not state actors, the Fourth Amendment is inapplicable to their conduct in this case. In the alternative, even if NCMEC's search could be considered a government search, NCMEC's search did not exceed the scope of AOL's search in such a way that would be constitutionally significant. Finally, with regard to Defendant's statements to law enforcement, the Court finds that Defendant's meeting was not a custodial interrogation, and thus, the Court will not suppress Defendant's statements. Accordingly, the Court denies Defendant's motion.

I. Factual and Procedural Background[1]

A. Background on AOL

AOL, formerly known as American Online and Quantum Computer Services, is an internet service provider. As part of AOL's services, it offers free and premium (paid) email service to its users. 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 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.

An AOL user is required to agree to these TOS if they have an account with AOL. If AOL makes changes to the TOS, AOL sends an email to the user's email address stating the date that the new TOS will become effective. A user's log-in after the effective date implies consent to accept the new TOS.

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.

Greg Phillips, AOL's Senior Technical Security Investigator, testified as to how AOL developed this database of hash values. Historically, people would report to AOL when they would receive a file containing child pornography. AOL's graphic review team would then look at that file to determine if the image met the definition of child pornography. Once AOL made this determination, it would take a hash value of that file (child pornography image) and add it to its database. AOL uses a MD5 hash value. The MD5 hash value contains approximately thirty digits, and the hash value is derived from the image based on a computation from an algorithm. A hash value is sometimes referred to as a digital fingerprint because the hash value is unique to a specific digital file. Any alteration of the image or file would result in a different hash value.

AOL does not obtain hash values from any outside company and has only developed its database of hash values from the graphics review team at AOL. AOL's database has grown from zero to approximately 100, 000 hash values. AOL does not retain the images of child pornography.

When AOL, through its IDFP, detects a file that matches a hash value in its database, the email is captured, and AOL terminates the user's account pursuant to its TOS. AOL then generates a report and creates a new email to send to NCMEC via NCMEC's CyberTipline. AOL's email and report includes the intercepted email and attached file(s); the user's account information; and the IP address of where the member was logged on. By statute, 18 U.S.C. ยง 2258A(a)(1), an internet service provider (such as AOL) is required to report to NCMEC's CyberTipline any child pornography it "obtains actual knowledge of... as soon as reasonably possible."

Mr. Phillips testified that AOL utilizes its IDFP to protect its business interests. He stated that AOL wants to protect its reputation and brand because it does not want to be associated with illegal activity. In addition, AOL wants its customers to stay with AOL and feel safe and secure.

B. Background on National Center for Missing and Exploited Children ("NCMEC")

NCMEC is a 501(c)(3) nonprofit organization established in 1984. Its headquarters are in Alexandria, Virginia. John Shehan, Executive Director of the Exploited Child Division at NCMEC, testified that NCMEC's mission is to help reunite families with missing children, reduce child sexual exploitation, and prevent child victimization. NCMEC receives it funding through federal grants, individual donations, and in-kind donations. Approximately seventy-five percent of its funding comes from ...


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