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United States v. DiTomasso

United States District Court, S.D. New York

January 26, 2015

- FRANK DiTOMASSO, Defendant

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

For the Government: Margaret Praham, Assistant U.S. Attorney, Southern District of New York, New York, NY.

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Shira A. Scheindlin, United States District Judge.


Frank DiTomasso has been charged with producing and transporting child pornography. Much of the Government's case against DiTomasso depends on evidence procured through searches of his computer -- searches carried out pursuant to a warrant that was issued, in part, on the basis of evidence obtained by America Online (" AOL" ) and (" Omegle" ) when they monitored DiTomasso's emails and chats. DiTomasso believes that by reviewing the content of online Correspondence, AOL and Omegle violated his Fourth Amendment rights, because (1) he had a reasonable expectation of privacy in the content of his emails and chats, and (2) AOL and Omegle were operating as agents of law enforcement. On this theory, DiTomasso moved to suppress chats and emails, as well as any other " information and tangible and intangible evidence obtained through subsequent searches by [law enforcement]" as fruit of the poisonous tree.[1]

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On October 28, 2014, I ruled that DiTomasso had a reasonable expectation of privacy in the content of both his emails and his chats.[2] I also ruled, however, that DiTomasso consented to a search by AOL in a law enforcement capacity when he agreed to its terms of use -- defeating his suppression motion as to AOL.[3] But the motion is still live as to Omegle, and now the Court must resolve the question explicitly reserved in the October 28, 2014 Opinion. Namely, was Omegle operating as an agent of law enforcement when it reviewed screen shots of DiTomasso's chats and -- believing that they contained evidence of child pornography -- dispatched three reports to the National Center for Missing and Exploited Children (" NCMEC Reports" )?

For the reasons set forth below, I conclude that the answer is no. Omegle's [monitoring constituted a purely " private search," beyond the reach of the Fourth Amendment. Accordingly, DiTomasso's motion to suppress is DENIED.


Omegle monitors its chats " for inappropriate content. . . by capturing snapshots from chats that are conducted on Omegle," [4] which are then " analyze[d]" by an automated program " for content that is likely to be inappropriate, including, but not limited to, child pornography." [5] When the automated program flags inappropriate content, the chats are " passed on to two human reviewers," [6] and if a reviewer finds evidence of child pornography, she issues a NCMEC Report.[7]

The issuing of NCMEC Reports is obligatory under section 2258A of the PROTECT Our Children Act,[8] which requires any private entity that " obtains actual knowledge" of child pornography trafficking to notify NCMEC.[9] The statute also provides a safe harbor for compliance. Under section 2258B, any entity that issues a NCMEC Report pursuant to its obligations under section 2258A is immunized from all liability, civil or criminal, that might otherwise have resulted from the nonconsensual disclosure of a user's electronic information.[10] There is however, no statutory obligation to look for child pornography trafficking. Rather, provider the obligations of section 2258A are triggered only when an internet service " ISP" ) like Omegle obtains " actual knowledge" of such trafficking. Section 2258A(f) makes clear that

[n]othing in [section 2258A] shall be construed to require an electronic communication service provider or a remote computing

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service provider to monitor any user, subscriber, or customer of that provider; monitor the content of any communication of any person; or affirmatively seek facts or circumstances [related to the trafficking of child pornography].[11]

According to Omegle's founder, Lief K-Brooks, the company began " monitoring chats in November 2012, as an effort to improve the user experience by removing inappropriate content from the site." [12] The decision stemmed from K-Brooks' perception that " [a]t [the] time, websites offering anonymous chat services were receiving negative media attention for the amount of inappropriate content on their sites." [13] Wary of receiving such attention, K-Brooks " decided to implement [a] monitoring program." [14] As K-Brooks put it during the suppression hearing, he " wanted [his] site to be the best it could be for users," and he thought that " having inappropriate content on the site" was interfering with that goal -- an impression gleaned from " feedback from users," as well as " media reports" and conversations with " friends [who] weren't as keen to use [the] site because of the amount of inappropriate content that it had." [15]

K-Brooks also clarified, however, that he knew Omegle was under no obligation to monitor its users' chats. To the best of his understanding, " if [Omegle] has actual knowledge of apparent child pornography, [it has] a duty to report it to the government, but no duty to monitor." [16] K-Brooks also testified that he made the decision to implement the monitoring program on his own[17] -- possibly after conversations with " friends or family," [18] but certainly without any input from law enforcement.[19]

In February 2013, Omegle developed an " unmonitored" version of its chat servicte.[20] This new feature allows users to opt-out of monitoring.[21] When asked why he decided to create an " unmonitored" version of Omegle, K-Brooks testified that it was, in effect, a concession to reality. Although ideally he would have preferred to excise all inappropriate content from the site, that goal seemed unrealistic -- so he struck a compromise. In K-Brooks' words:

I felt that, basically, people can evade a ban [of inappropriate material], no matter what you do, no matter how hard you try to keep them from getting around a ban, they can always find different technical means, whether that's clearing their cookies, changing their IP address, using a proxy, etc. So I felt it was better if those people who might be really intent to use the site but who I didn't want to be interacting with all the users, I felt it was better to give them

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an alternative path of least resistance].[22]

When DiTomasso's counsel pressed him on this point at the suppression hearing, K-Brooks reaffirmed that he was opting for a lesser-of-two-evils approach. When asked why he did not " just ban people on the monitored site and not create an unmonitored site for people doing what you fairly well knew was going to be inappropriate conduct," [23] K-Brooks testified that " I mean, there's really no way to ban someone from a website and be completely sure that they [sic] can never come back again because the technology just isn't there yet . . . and if you just ban someone, then they might come back the next day." [24]


The Fourth Amendment regulates state actors. Therefore, private parties are only bound by its requirements insofar as they operate as de facto state actors. As the Supreme Court explained in United States v. Jacobsen,[25] the Fourth Amendment is " wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any government official." [26]

One way for a private party to " act[] as an agent of the Government" is through legal compulsion. If a private party must perform a search -- if she can face liability for not doing so -- the search " is controlled by the Fourth Amendment." [27] But legal compulsion is not necessary for an otherwise-private search to be subject to the Fourth Amendment's requirements. A search carried out voluntarily by a private actor will still be subject to the Fourth Amendment's strictures if the government " demonstrate[s] a strong [] preference for [the search]." [28] For example, the Supreme Court has applied Fourth Amendment scrutiny to drug testing carried out by private railway companies, due to the existence of federal regulations that (1) precluded any collective bargaining agreement that forbade drug testing, (2) imposed specific penalties on employees who failed to submit to such testing, and (3) authorized the government to obtain test results.[29] Considering these facts and circumstances holistically, the Court concluded that the government had effectively " removed all legal barriers to the testing . . . [making] plain not only its

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strong preference for testing, but also its desire to share the fruits of such intrusions. . . . These are clear indices of the Government's encouragement, endorsement, and participation, and suffice to implicate the Fourth Amendment." [30]

Another way for a private party to " act[] as an agent of the Government" is to perform searches with an intent to assist law enforcement.[31] The law in this area is unsettled, and has not been addressed in the Second Circuit, But the Sixth Circuit has concluded, for example, that a private actor's reason for performing a search must be " entirely independent of the government's intent to collect evidence for use in a criminal prosecution" to escape Fourth Amendment scrutiny.[32] Similarly, the Ninth Circuit has held that an otherwise-private search must comply with the Fourth Amendment if " its purpose [is] to elicit a benefit for the government in either its investigative or administrative capacities." [33]


DiTomasso proposes two theories why Omegle was acting as an agent of law enforcement when it reviewed his chats. First, he argues that Omegle's monitoring program was implemented, in the first instance, with the goal of assisting law enforcement. Second, DiTomasso argues that regardless of why Omegle decided to begin monitoring chats, it was conscripted into a law enforcement role by the combination of (1) the reporting requirements set forth in section 2258A, and (2) the guarantee of immunity in section 2258B.

A. Omegle's Monitoring Was for Business Purposes

There is no direct evidence to support the proposition that Omegle intended

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its monitoring program to assist law enforcement. In fact, at the suppression hearing, K-Brooks testified to exactly the opposite effect. He represented that Omegle began monitoring chats in an effort to staunch the " inappropriate content" flowing through its site. And when K-Brooks became concerned that monitoring, alone, was insufficient to meet this goal, he also set up an unmonitored section of Omegle, designed to quarantine " inappropriate content" to a specific, and self-selecting, population of users. Both of these decisions track the concerns -- in essence, concerns about user experience -- that K-Brooks articulated at the suppression hearing.

According to DiTomasso, K-Brooks' explanations are " not credible." [34] But DiTomasso marshals little evidence to support this view -- and much of the evidence he does offer cuts the other way. For example, DiTomasso calls attention to the fact that in 2012, " Omegle received significant media attention when it was discovered that two individuals used Omegle to meet underage victims." [35] But this merely underscores the need for monitoring and/or quarantining -- which, if anything, makes K-Brooks' testimony more credible, not less. Similarly, DiTomasso argues that after considering the record holistically, the most likely explanation for K-Brooks' decision to develop an " unmonitored" section of Omegle is that he wished to " make[] additional ad revenue," not -- as K-Brooks testified -- that he wanted to " remov[e] inappropriate content" from the site. Even if this is true, however, it merely points to another business rationale for Omegle's monitoring practices. The Fourth Amendment is indifferent to whether K-Brooks wanted to purge his site of inappropriate content or, instead, to reap a monetary gain from its presence. The question is whether reap a mo he also intended to catch criminals. And the answer, on this record, is no.

The picture that DiTomasso conjures -- of ISPs like Omegle using their monitoring programs to play cyber-vigilante -- is certainly plausible. Child pornography is despicable. In the abstract, it makes sense that many companies would like to discover it and report it. But there is no evidence that Omegle sought to aid law enforcement when it monitored users' chats for evidence of child pornography. Therefore, DiTomasso's first argument is unavailing.

B. Sections 2258A and 2258B Did Not Convert Omegle Into a Government Agent

Next, DiTomasso argues that regardless of what motivated Omegle to begin monitoring its users' chats, sections 2258A and 2258B effectively transformed Omegle -- and similarly-situated ISPs -- into agents of law enforcement. This argument has two prongs. First, it could be that all entities bound by the requirements of section 2258A, and immunized from suit by section 2258B, operate as agents of law enforcement, regardless of how much (or how little) the statutory scheme actually influenced an entity's decision to monitor. Second, it could be that this statutory scheme has the practical effect of encouraging monitoring -- notwithstanding that neither section 2258A nor section 2258B bears on monitoring directly.

DiTomasso's claim fails on both prongs. An otherwise-private search only converts into a law enforcement search if the search itself is obligatory. A subsequent reporting obligation, which only goes

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into effect if a search is performed, is insufficient. As the Eighth Circuit has explained, both section 2258A and section 2258B " [are] silent regarding whether or how [an ISP] should scan its users' [activity]." [36] Indeed, " [t]he only subsection that bears on scanning" -- section 2258A(f) -- " makes clear that an [ISP] is not required to monitor any user or communication, and need not affirmatively seek facts or circumstances demonstrating a violation that would trigger the reporting obligation of section 2258A(a)." [37] In light of this, I would be hard-pressed to conclude 2258A(a) that sections 2258A and 2258B require private actors to perform law enforcement searches. Indeed, as the Government points out, an entity faced with reporting obligations under 2258A may well be " incentivize[d] [] not to monitor for child pornography, on the theory that they cannot be punished for failing to report what they do not know about." [38]

Turning to the second prong of the argument[39] -- that although section 2258A is " silent as to . . . monitor[ing]," the reality is that ISPs feel pressure to monitor -- the deficiency is factual, not legal. In his testimony at the suppression hearing, K-Brooks made clear that he appreciates the difference between an obligation to monitor and an obligation to report, and that he " understood" section 2258A -- correctly -- as imposing " no duty to monitor." [40] In the absence of countervailing evidence, I must accept this testimony at face value. According to its founder and CEO, Omegle felt no obligation to monitor its users' chats. It did so of its own accord. Thus, the decision raises no Fourth Amendment concern.


For the reasons set forth above, DiTomasso's motion to suppress is DENIED.

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The Clerk of the Court is directed to close this motion [Dkt. No. 16].


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