A federal district judge recently held in a child pornography (CP) case that the website's banner doubly defeated any Fourth Amendment objection to an investigator's use of the site to collect evidence of possession and distribution of CP. The case, United States v. Bode, No. 1:12-cr-00158-ELH (D. Md. Aug. 21, 2013), rests on evidence developed by a government investigator (Burdick) who was granted administrator-level access to a website where the defendant (Bode) was allegedly posting CP. The website in question (which has since been shut down) offered users a real-time chat service, including the ability to send messages and images to public chat rooms, as well as "privately" to individual users. The site logged timestamps, IP addresses, message contents, images, and public chat room history for review by its administrators, though individual users could not see or review their own usage history after a chat session was over. The website also required acceptance of its terms of service before allowing users to post or receive messages. Its terms read:
BEHIND EVERY PICTURE THERE IS PAIN!
HELP US REPORT IT!
Posting photos, graphics or cartoons showing persons under 18 years of age is not allowed. Child pornography or other illegal material will immediately be reported to the posters [sic] local authorities. Requesting images of the above nature is not allowed. All posted pictures and conversations, public and private, are logged and supervised. [The website] may disclose these communications to the authorities at its discretion.The final sentence (emphasis added) was appended at Burdick's request during his investigation, before the CP images at issue in the case were allegedly posted.
But first, the backstory: Burdick, an agent with the Department of Homeland Security's Immigration and Customs Enforcement (Child Exploitation Investigations Group), heard that users of this website were trading. Without getting a warrant or a court order, he began looking into the site and observed users posting CP using the chat service. Burdick checked with the website's domain name registrar to try to identify its operator and found that its administrator was located in Sweden. Since it is more complicated to serve process on a foreign entity (and it is unclear whether Burdick would have had the authority to do so), he emailed the site operator to ask for cooperation in his CP investigation. The site operator enthusiastically complied, giving Burdick an administrator-level account on the website so he could directly review the site's logs. Burdick used his administrative access to identify users who had been reported by others for (potentially) trading CP, and then began checking the logs generated by those particular users more carefully.
Eventually Burdick checked with an Assistant United States Attorney, who recommended that he ask for changes to the website's terms of service, italicized above. (The US Attorney's office also declined to use any evidence developed before the language was appended.) After the terms of service were changed, Burdick used the administrator function to save logs and images users sent to public chat rooms and as private messages to other users. Burdick collected evidence that a user had posted CP from what turned out to be defendant Bode's IP address. This eventually served as probable cause for a warrant to search his home and computers for CP, which revealed additional CP on Bode's computer.
Suppression AnalysisBode moved to suppress all of the evidence against him as fruit of the poisonous tree, on grounds that Burdick's initial investigation violated the Fourth Amendment, the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., and the Wiretap Act, 18 U.S.C. § 2510 et seq. The court dealt with the Wiretap Act and SCA claims easily: neither statute includes a suppression remedy for information obtained from "electronic communications" like those here, while the Wiretap Act does include a suppression remedy for information obtained intercepted in real time from "wire or oral communication," at 18 U.S.C. § 2515. This made it easy for the court to conclude that when Congress did not include a suppression remedy for electronic communications, it did so with a specific intent not to create such a remedy. The court therefore declined to find an implied statutory right of suppression.
The constitutional claim, violation of the Fourth Amendment, is more interesting, since it could give rise to a suppression remedy (though somewhat ironically, constitutional suppression is a court-created remedy, see Weeks v. United States, 232 U.S. 383 (1914)). As a preliminary matter, the parties had conceded (for the purposes of the Fourth Amendment analysis in the motion at issue here) that the website had become the government's agent, by granting Burdick administrator-level access and changing the language of its banner at his request. Nevertheless, the court held that the banner to which Bode agreed in order to use the chat service constituted two separate grounds for eliminating any Fourth Amendment objections to Burdick's collection of evidence:
First, the banner defeated any reasonable expectation of privacy, which is a prerequisite for any protectable Fourth Amendment interest under Katz v. United States, 389 U.S. 347 (1967). The Bode court compared the banner's language to other cases in which a reasonable expectation of privacy had been at issue, finding that the added text ("[The website] may disclose these communications to the authorities at its discretion.") put the issue beyond doubt, as the AUSA had hoped: users had given up their expectations of privacy. Under this theory, no protectable privacy interest existed, and no constitutional "search" ever occurred, so there was no Fourth Amendment violation and no reason to suppress the resultant evidence.
Second, the court found that even if a search had occurred, the banner indicated consent to that search. Bode tried to argue that his consent had been limited in scope to investigation by the website operator, not the government, but the court was having none of it, instead finding that there was "no meaningful distinction" between the consent Bode had given (for the website operator to turn over information to the authorities) and what actually happened (the operator creating an administrator account for the investigator). This consent was therefore sufficient to allow Burdick's collection of evidence even if it was a Fourth Amendment search.
The government also argued that the website operator had "common authority" to consent to searches of its logs, but the court did not address this argument, having already found two grounds for denying Bode's motion to suppress. Had the court addressed the issue, it probably would have been able to find the site administrator, which had the right to examine its logs, also had the right to authorize their search under the common authority doctrine of United States v. Matlock, 415 U.S. 164 (1974) (finding common authority over shared room sufficient) and Frazier v. Cupp, 394 U.S. 731 (1969) (finding shared use of a duffel bag sufficient). In fact, since the operator could view the logs while ordinary users could not, I found this to be the government's strongest argument, and I am not sure why the court did not even address it.