## Facts

- Frank DiTomasso was federally charged with producing and transporting/distributing child pornography under 18 U.S.C. §§ 2251 and 2252A.
- Investigators received leads originating from two online service providers, America Online (AOL) and Omegle, which monitored user activity for suspected child sexual exploitation material.
- When AOL or Omegle detected suspected child pornography, each generated reports transmitted to the National Center for Missing and Exploited Children (NCMEC), which in turn notified law enforcement.
- Based in part on the provider and NCMEC information, law enforcement obtained warrants and conducted searches, including a search of DiTomasso’s computer and related materials.
- AOL’s terms of service stated it actively scanned for evidence of criminal activity and would share such evidence with law enforcement.
- Omegle informed users it logged IP addresses for law-enforcement purposes, but its terms otherwise did not clearly indicate it would monitor chats as an arm of law enforcement.
- DiTomasso moved pretrial to suppress (i) emails and chats obtained via AOL and Omegle and (ii) derivative evidence obtained through later warrant-based searches, arguing the provider monitoring violated the Fourth Amendment.

## Issues

1. Whether a user has a reasonable expectation of privacy in the content of emails and online chat communications handled by third-party providers.
2. Whether agreeing to AOL’s terms of service constituted consent to AOL’s scanning and disclosure to law enforcement, defeating Fourth Amendment suppression.
3. Whether Omegle’s monitoring and reporting should be attributed to the government (government-agent theory) or treated as a private search.
4. If the initial monitoring was unconstitutional, whether later warrant-based searches must be suppressed as fruit of the poisonous tree.

## Decision

- The court held DiTomasso had a reasonable expectation of privacy in the content of both his emails and his chats.
- The court denied the suppression motion as to evidence derived from AOL because DiTomasso consented to AOL’s monitoring in a law-enforcement capacity by agreeing to AOL’s terms of service.
- As to Omegle, the court did not finally resolve in this opinion whether Omegle acted as a government agent, leaving that aspect for later determination.
- Because the AOL monitoring was valid by consent, the court rejected derivative-evidence suppression to the extent it depended on AOL as the alleged unlawful “poisonous tree.”

## Legal Principles

- Fourth Amendment protection may extend to the content of electronic communications (such as email and online chats) even when transmitted through or stored with an online service provider.
- Consent can eliminate a Fourth Amendment violation; assent to clear provider terms disclosing active scanning and law-enforcement reporting can constitute consent to that monitoring.
- The Fourth Amendment applies only to governmental conduct; provider monitoring is outside the Fourth Amendment when performed as a private search rather than as a government agent.
- “Fruit of the poisonous tree” suppression depends on an initial unconstitutional search; if the initial search is valid (including by consent), derivative evidence is not suppressed on that basis.

## Conclusion

The court recognized a privacy interest in the content of emails and chats but denied suppression as to AOL-derived evidence because the defendant consented through AOL’s terms of service; the opinion left open, for later resolution, whether Omegle’s monitoring could be treated as governmental action.


United States v. DiTomasso, 56 F. Supp. 3d 584 (S.D.N.Y. 2014)