Court Says By Agreeing To AOL's Terms Of Service, You've 'Consented' To Search By Law Enforcement

by Mike Masnick
Techdirt
Nov. 05, 2014

The ACLU's Jameel Jaffer alerts us to a district court ruling in NY that effectively says that by merely agreeing to AOL's terms of service, you've waived your 4th Amendment rights. The case is the United States v. Frank DiTomasso, where DiTomasso is accused of producing child porn -- with most of the evidence used against him coming from AOL. DiTomasso argues that it was obtained via an unconstitutional search in violation of the 4th Amendment, but judge Shira Scheindlin rejects that, by basically saying that AOL's terms of service make you effectively waive any 4th Amendment right you might have in any such information. To be fair, Scheindlin doesn't get to that conclusion breezily, and earlier in the ruling worries that one can just give up such 4th Amendment rights:

I conclude that it would subvert the purpose of the Fourth Amendment to understand its privacy guarantee as "waivable" in the sense urged by the government. In today's world, meaningful participation in social and professional life requires using electronic devices -- and the use of electronic devices almost always requires acquiescence to some manner of consent-to-search terms. If this acquiescence were enough to waive one's expectation of privacy, the result would either be (1) the chilling of social interaction or (2) the evisceration of the Fourth Amendment. Neither result is acceptable.

Agreed. So... what's the issue here? Well, apparently AOL's terms of service are so clear to the point that it would monitor your account for illegal behavior that somehow it's okay in this case:

AOL's policy is quite different. Not only does it explicitly warn users that criminal activity is disallowed, and that AOL monitors for such activity; the policy also explains that "AOL reserves the right to take any action it deems warranted" in response to illegal behavior, including "terminating] accounts and cooperat[ing] with law enforcement." The policy also makes clear that AOL reserves the right to reveal to law enforcement information about "crimes[s] that [have] been or [are] being committed." In contrast to Omegle's policy, which includes only a passing reference to law enforcement -- and which gives no indication of the role Omegle intends to play in criminal investigations -- AOL's policy makes clear that AOL intends to actively assist law enforcement. For this reason, I conclude that a reasonable person familiar with AOL's policy would understand that by agreeing to the policy, he was consenting not just to monitoring by AOL as an ISP, but also to monitoring by AOL as a government agent. Therefore, DiTomasso's Fourth Amendment challenge fails as to the emails.

I'm not entirely sure how to reconcile those two paragraphs. They seem to directly contradict one another. The fine line of difference here is that the court is saying the 4th Amendment rights aren't "waived," but that DiTomasso effectively "consented" to a search by law enforcement. This seems like a distinction without any real difference.

Still, there is a separate public policy question here. Many internet service providers similarly analyze emails against a hash database of known child porn images to try to catch people sending around child porn -- and there's a reasonable argument to be made that there's a good reason that this is done. In fact, just a few months ago there was news of a similar situation involving a Gmail user, where Google's automated systems alerted NCMEC to potential child porn. But, even given that, it seems troubling to suggest, even in this somewhat narrow manner, that you could effectively give up your 4th Amendment rights just by agreeing to a terms of service. These are the kinds of loopholes that the government is known to jump all over and expand until they effectively swallow the entire rule. And, of course, almost no one wants to claim that they're trying to better defend people engaged in child porn -- but that's how basic fundamental rights get chipped away. You attack those rights against the kind of people that no one wants to defend, and then that removal of rights is expanded to more and more and more people. Even if you're against child porn (and you should be), it should be concerning that a mere terms of service can be seen as official "consent" to law enforcement to a search of otherwise private communications.

Read the ruling (PDF)