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United States v. Ackerman

United States District Court, D. Kansas

October 30, 2017

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

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         This matter 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 Children (“NCMEC”), the parties who searched Defendant's emails, were not state actors. Thus, the Fourth Amendment was inapplicable to their conduct in this case. In the alternative, this Court found that 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.

         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 private 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 [1]

         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 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.

         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 an email with images, either as an attachment to that email or embedded in the body of the email, AOL's IDFP compares those images with previously identified child pornography images. If a match occurs, AOL automatically terminates the user's account and the user can no longer access his email account.

         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.[2] As a result of AOL's discovery that Defendant violated AOL's TOS, AOL immediately terminated Defendant's account.

         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.[3] NCMEC then alerted local law enforcement agents.

         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 (Doc. 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.”[4] The Tenth Circuit stated that one of those hard questions was “whether the third-party doctrine might preclude [Defendant's] claim to the Fourth Amendment application.”[5] It also appears that the Tenth Circuit left open the question of whether Defendant had a reasonable expectation of privacy given that it stated “the district court has yet to make any factual findings relevant to [Defendant's] subjective expectations of privacy or the objective reasonableness of those expectations in light of the parties' dealings (e.g., the extent to which AOL regularly accessed emails and the extent to which users were aware of or acquiesced in such access).”[6] The final issue to be resolved is whether one of the “hard questions” on remand encompasses the good faith doctrine and its applicability in this case.

         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 attachments. Next, the Court will consider whether the government acted in good faith and whether the good faith doctrine is applicable in this case.

         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.[7] The circuit also stated that this Court had not made any factual findings as to a reasonable expectation of privacy and that those facts may impact the legal analysis.[8]Thus, the Court will now consider Defendant's expectation of privacy in his email.

         “A search only violates an individual's Fourth Amendment rights if he or she has a legitimate expectation of privacy in the area searched.”[9] There is a two-part test in determining whether a reasonable expectation of privacy exists.[10] First, the defendant must demonstrate that he “manifested a subjective expectation of privacy in the area searched.”[11] Next, there is the question of “whether society is prepared to recognize that expectation as objectively reasonable.”[12]

         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 account 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 case 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 states 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 must not post explicit sexual acts. Furthermore, it informed Defendant that if he did not comply with the applicable TOS, it could take technical, legal or other actions (in its sole discretion) to enforce the TOS.

         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, [13] a case from the District of Kansas, the defendant had an account through electronic service provider Sony's PlayStation Network.[14] Users can communicate with other users online in a similar manner to email communication, and users must agree to Sony's TOS.[15] The defendant sent messages about child pornography and downloaded images that included child pornography.[16]

         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.[17] The court noted that although the case before it did not involve an employee-employer relationship, the rationale that “the employer's regulations reduced the employee's expectation of privacy” applied equally to Sony and its users.[18] The court noted that users of Sony's PlayStation had to agree to the TOS when signing up for an account.[19] The TOS included such terms that Sony reserved the right to monitor online activity and that users must not violate any laws.[20] Thus, the Court found that the TOS “explicitly nullified its users reasonable expectation of privacy.”[21]

         Similarly, in United States v. Wilson, [22] a case from the Southern District of California, the court determined that the defendant lacked a reasonable expectation of privacy in the child pornography files that he uploaded to his Google email account because he had agreed to Google's TOS when creating his Google account.[23] The court reasoned that the defendant was aware that Google may review and monitor his account for illegal activity.[24] Thus, the court found no reasonably objective expectation of privacy.[25]

         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.

         B. Good ...


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