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United States v. DiTomasso

United States District Court, S.D. New York

October 28, 2014

UNITED STATES OF AMERICA
v.
FRANK DiTOMASSO, Defendant

Page 585

For Frank DiTomasso, Defendant: Lee Alan Ginsberg, Nadjia Limani, Esq., Freeman Nooter & Ginsberg, New York, NY.

For Government: Margaret Graham, Assistant U.S. Attorney, U.S. Attorney's Office for the Southern District of New York, New York, NY.

Page 586

OPINION AND ORDER

SHIRA A. SCHEINDLIN, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

Frank DiTomasso faces criminal charges for the production and transportation of child pornography. Much of the government's case against DiTomasso depends on evidence found on his computer -- evidence that he claims was obtained in violation of the Fourth Amendment. Accordingly, DiTomasso has moved to suppress (1) evidence obtained when internet service provider (" ISP" )[1] American Online (" AOL" ) examined the content of his email, (2) evidence obtained when ISP Omegle.com LLC (" Omegle" ) examined the content of his chats, and (3) all " information and tangible and intangible evidence obtained through subsequent searches by [law enforcement]" as fruit of the poisonous tree.[2]

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This Opinion addresses two questions. First, it addresses the threshold question of whether DiTomasso had an expectation of privacy in the content of his emails and chats. If so, his Fourth Amendment challenge to AOL's and Omegle's conduct may proceed. If not, the challenge fails as a matter of law. Second, it addresses whether DiTomasso, by agreeing to AOL's and Omegle's respective terms of use, consented to a search of his emails and/or his chats.

For the reasons set forth below, DiTomasso's motion to suppress is DENIED in part.

II. BACKGROUND

A. AOL Emails

DiTomasso has an AOL email account -- frankieinnyc1@aol.com. When AOL users send or receive emails that contain attachments, AOL runs two background monitoring systems designed to scan for illicit material, including, but not limited to, child pornography.[3] The programs work by assigning " hash numbers" to image and video files. In essence, hash numbers are unique number-strings that can be used to archive packets of data -- " fingerprint[s]" for electronic media.[4]

AOL employs two different hashing programs. The first -- the Image Detection and Filtering Process (" IDFP" ) -- sweeps for one-to-one matches with known child pornography.[5] If an attached file is a one-to-one match, the email is quarantined -- i.e., diverted from the recipient's inbox -- and an automatic report is generated and sent to the National Center for Missing and Exploited Children (" NCMEC report" ).[6]

AOL's second hashing program -- " photoDNA" -- looks for similarities among hash numbers.[7] If photoDNA identifies an attachment with a hash number close enough to known child pornography to raise alarm, the email is once again quarantined, and " an AOL employee reviews the flagged file to confirm the presence of apparent child pornography." [8] Once the presence of apparent child pornography is confirmed, the employee " submit[s] a [NCMEC report]," [9] and the file's hash number is entered into the IDFP database.

On August 17, 2012, two emails intended for frankieinnyc1@aol.com were hashed and quarantined, giving rise to two corresponding NCMEC reports. The first email, which formed the basis of NCMEC report #1560137, was hashed using photoDNA -- and its contents were reviewed by an AOL employee.[10] The second email, which formed the basis of NCMEC report #1558963, was hashed using IDFP.[11] No AOL employee reviewed its contents.

B. AOL's Privacy Policy

At the time of the disputed searches, AOL's privacy policy and terms of use required users to assent to the following

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conditions. First, they forbade users from " post[ing] 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." [12] Second, AOL's terms provided that " AOL reserves the right to take any action it deems warranted" in response to illegal behavior, including " terminat[ing] accounts and cooperat[ing] with law enforcement." [13] Third, AOL's terms made clear that if users " disclose information about [themselves] publicly . . . others outside of AOL may obtain access to [such] information," and furthermore, that AOL itself may disclose to others -- including law enforcement -- " information [that is] relevant to a crime that has been or is being committed." [14]

C. Omegle Chats

Omegle.com is an online platform that " randomly pairs a user in a one-on-one session with a stranger, and allows strangers to communicate via text and video chats." [15] Omegle monitors " for inappropriate content . . . by capturing snapshots from chats that are conducted on Omegle," [16] which are then " analyze[d]" by an automated program " for content that is likely to be inappropriate, including, but not limited to, child pornography." [17] When the automated program flags inappropriate content, the chats are " passed on to two human reviewers," [18] and if a reviewer finds evidence of child pornography, a NCMEC report is filed.[19]

On three separate occasions -- November 30, 2012, January 4, 2013, and December 11, 2013 -- snapshots of DiTomasso's Omegle chats were flagged for evidence of child pornography. This led to the filing of three NCMEC reports: #1704143, #1741964, and #2235394, respectively.[20]

D. Omegle's Privacy Policy

At the time of the disputed searches, Omegle's privacy policy set forth the following conditions. First, Omegle's policy explained that Omegle keeps " record[s] of the IP addresses involved in every chat." [21] The policy articulated numerous reasons for maintaining such records -- including " for the purpose of law enforcement." [22] Second, Omegle's policy also made clear that it engages in two forms of monitoring distinct from its IP record-keeping, which are intended for " quality control purposes." [23] The first is that messages flagged as spam " may be read by a human being to improve Omegle's anti-spam software." [24] The second is that " [w]ebcam videos may be captured from Omegle video

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charts . . . and monitored," on an ad hoc basis, " for misbehavior." [25]Third, Omegle's policy cautioned users to be " careful about what information [they] reveal" during chats, because " strangers can potentially tell other people ...


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