In April 2013, an AOL-run automated program that systematically scans emails from AOL accounts for malware, viruses, and illegal images, detected child pornography on an email sent from defendant Walter Ackerman’s account. Because child pornography is a breach of AOL’s Terms of Service (TOS), the discovery prompted the company to terminate the defendant’s account immediately. The next day, AOL submitted a report to the National Center for Missing and Exploited Children (NCMEC) through NCMEC’s CyberTipline; the report included the email sent from Ackerman’s account along with the offending images. An NCMEC analyst viewed the email and confirmed that all four images appeared to be child pornography. NCMEC then alerted law enforcement. A federal grand jury later indicted Ackerman on charges of possession and distribution of child pornography.
Ackerman argued in district court that NCMEC – a nonprofit fashioned through a statutory framework that produces a “special relationship” between NCMEC and law enforcement – was a government entity requiring a warrant to search the contents of his email. The U.S. Court of Appeals for the Tenth Circuit agreed and remanded the case to a lower court to decide whether Ackerman had a reasonable expectation of privacy in his email. The government alleged that the search was not unreasonable, despite the absence of a warrant, because AOL had already terminated Ackerman’s account for the TOS violation and Ackerman therefore no longer had a reasonable expectation of privacy in its contents.
In October 2017, the district court found that Ackerman did not have a reasonable expectation of privacy in his email and the four attachments. The court also ruled that even if the government violated Ackerman’s Fourth Amendment rights, suppression of evidence was unwarranted due to the good faith exception. Ackerman appealed the decision to the U.S. Court of Appeals for the Tenth Circuit; the Brennan Center, together with the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers, and the Center for Democracy and Technology, filed an amicus brief in support.
First, the brief argues that the district court’s opinion undermines widely recognized Fourth Amendment protections for emails. Because people conduct most of their personal and professional correspondence electronically, obtaining access to an individual’s email allows the government to examine years or decades worth of communications – a record of nearly every aspect of people’s lives. As such, email users have a reasonable expectation of privacy in their emails and the government must obtain a warrant to access them. This holding has been adopted by every court that has decided the question of whether the Fourth Amendment protects the contents of email held by an internet service provider.
Second, the brief argues that the ability of a third-party service provider like AOL to access emails does not fatally undermine a user’s reasonable expectation of privacy. For example, tenants and hotel guests enjoy Fourth Amendment protection for their possessions stored in rented spaces, and a landlord or hotel staff’s ability to enter the space does not diminish the renter’s expectation of privacy. The brief also maintains that an email provider’s TOS should not defeat a user’s reasonable expectation of privacy in an email.
Amici thus argue that the district court’s holding that AOL’s TOS extinguished the defendant’s reasonable expectation of privacy is inconsistent with established Fourth Amendment protections for email. And regardless of current caselaw, the brief also challenges the district court’s proposition that Fourth Amendment protections can be determined entirely by a private email provider’s TOS.
In addition to these established privacy and Fourth Amendment protections, amici argue that courts have recognized that an individual’s expectation of privacy survives the termination of a contractual relationship in other analogous contexts. There is also broad consensus that people expect privacy in email communications, and the government regularly obtains a warrant before trying to access a person’s email. Finding that a service provider could circumvent this expectation through a TOS would be a drastic change from the privacy that people have long expected concerning their personal communications. Amici also argue that relying on TOS and other contractual terms to define the contours of Fourth Amendment protection would undermine users’ expectations of privacy in other ways and lead to absurd results. For example, an internet service provider could terminate an account under its TOS for sending an email containing a racial epithet or sharing a blog with a work colleague without the copyright holder’s permission; these actions should not give the government free rein to rummage around in the account holder’s electronic communications.
Accordingly, the amici call on the Tenth Circuit to reverse the district court and hold that Mr. Ackerman had a constitutionally protected expectation of privacy in his email account that was violated when it was accessed without a warrant.
For more read the amicus brief here.