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United States v. DiTomasso

United States District Court, S.D. New York

January 26, 2015

UNITED STATES OF AMERICA -
v.
- 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.

Page 305

OPINION AND ORDER

Shira A. Scheindlin, United States District Judge.

I. INTRODUCTION

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.com (" 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]

Page 306

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.

II. BACKGROUND

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 ...

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