By agreeing to AOL’s terms of service, you might be consenting to a search of your AOL emails by law enforcement, thereby waiving your Forth Amendment rights. This issue was addressed in the Southern District of New York in October when a defendant made an unsuccessful motion to suppress evidence obtained by law enforcement from AOL and Omegle.com. Like most cases involving digital Forth Amendment issues, it revolved around balancing difficult privacy concerns: permitting unconstitutional government searches simply by clicking “agree” on a website’s terms of service, against losing evidence simply because a website was policing its website for dangerous criminals, in this case a child pornographer.
Here, AOL found evidence of child pornography in defendant Frank DiTomasso’s emails through AOL’s hashing process. The process works by assigning identifiers to photos and videos it knows is child pornography. It then allows AOL to sweep subsequent emails and quarantine any that might match that media. AOL can then notify the National Center for Missing and Exploited Children.
The court first held that DiTomasso had an expectation of privacy in his electronic communications. People require electronic devices in order to communicate meaningfully and holding that a website’s consent-to-search terms might waive a person’s expectation to privacy would result in “the chilling of social interaction” or the “evisceration of the Forth Amendment.” The reasoning harks back to Justice Sotomayor’s concurrence in U.S. v. Jones, where she questioned the third party doctrine, in which people who voluntarily give information to third parties have no reasonable expectation of privacy. She writes: “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
The court went on to look at whether AOL violated DiTomasso’s expectation of privacy and whether DiTomasso actively consented to the search of his emails. In order to hold that DiTomasso waived his Forth Amendment rights, it would be necessary to show that AOL was acting as a government agent when it monitored his emails. The court found AOL’s terms of service provided explicit warnings that it was monitoring criminal activity and reporting it to law enforcement. The court held: “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, but also to monitoring by AOL as a government agent.”
Whether or not a person consented to the search of his emails appears to come down to how a reasonable person would interpret a website’s terms of service policy means. This means relatively little with today’s standards of lengthy, complicated policies packed with confusing legal jargon. It presupposes that a person is aware that the terms of service policy a website forces him to agree to has the possibility of forcing him to waive his Fourth Amendment rights, or at the very least compel him to allow the website to search through his electronic communications or use the hashing process. If a law-abiding person is simply concerned about his privacy and does not want to waive his Fourth Amendment rights, would he even be able to find an online service without this type of law enforcement terms of service?