In United States v. DiTomasso, Defendant was convicted of producing child pornography and transporting and distributing child pornography in the Southern District of New York.  The Second Circuit (Kearse, Jacobs, and Sack) held that searches of Defendant’s emails and chats on internet service providers AOL and Omegle, used for a search warrant leading to evidence against Defendant, did not violate Defendant’s Fourth Amendment rights, and that Defendant failed to preserve on appeal his argument that an entity which reports illegal user activity to authorities was a government entity or actor, subjecting that entity’s search to the Fourth Amendment.[1]  In addition, the Circuit held that Defendant’s trial counsel was not ineffective where counsel made a strategy decision not to call Defendant’s uncle (“Marcus”)—who allegedly admitted to Defendant’s crimes—as a witness.[2]

The Court Affirms, Rejecting Fourth Amendment and Sixth Amendment Arguments

Defendant made two Fourth Amendment arguments.  Both arose out of the involvement of the National Center for Missing and Exploited Children (“NCMEC”).  NCMEC is a private non-profit organization devoted to the reporting and preventing of child victimization.  Although NCMEC was created by the federal government and receives federal funding, it is a private entity and not a government agency.  Among other things, NCMEC is a clearinghouse for information about child exploitation and it often works in conjunction with law enforcement agencies.  As in this case, NCMEC often plays a key role in investigations involving the exploitation of children.

Defendant argued that the NCMEC reports based on complaints from internet service providers AOL and Omegle that child pornography had been associated with Defendant’s account should be suppressed because Defendant did not consent to those searches.  Defendant also argued that electronic communications from NCMEC should be suppressed because NCMEC functioned as a government actor.  The Circuit rejected both arguments. 

First, the Circuit did not reach whether Defendant consented to the internet service providers AOL and Omegle’s search of his electronic communications, because those communications played no material role in the proceedings.[3]  The NCMEC reports were not offered at trial, and the evidence in the record indicated that the investigation into Defendant’s conduct began many months before the AOL and Omegle complaints were sent to the NCMEC, meaning the internet service provider’s complaints were not the start of an investigation into Defendant’s conduct.[4]  In addition, the search warrant applications identified evidence that did not include the internet service provider complaints, and were thus supported by independent probable cause, regardless of any Fourth Amendment issue relating to AOL and Omegle’s searches.[5]  Moreover, internet service providers are not government actors, and therefore any search by Omegle was not governed by the Fourth Amendment.[6]  On this point, the district court held a hearing at which Omegle’s founder testified to Omegle’s monitoring operations, which led the district court to conclude that Omegle’s monitoring constituted a private search (and not one conducted as an agent or instrument of the federal government) unprotected by the Fourth Amendment.[7]

Second, the Circuit did not consider Defendant’s argument that the NCMEC search was beyond the scope of Defendant’s consent to AOL and Omegle and that NCMEC was a government actor, because Defendant failed to make this argument in district court.[8]  Defendant’s briefing to the district court included only “perfunctory references” which were not sufficient either to receive a ruling from the district court or to preserve the issue for appeal.

The Circuit also rejected Defendant’s ineffective assistance of counsel claim.  The Government submitted to the district court a declaration from Defendant’s trial counsel’s showing that counsel had no reason to believe Marcus was guilty or that Marcus would testify at trial.[9]  The Government also submitted a phone conversation between Defendant and Marcus indicating that Marcus did not want to testify.[10]  This, among other evidence, showed that Marcus was not willing to testify at Defendant’s trial and admit to Defendant’s conduct—the basis for Defendant’s ineffective assistance claim.  For this reason, even if Defendant’s trial counsel was in error to not call Marcus (which the Court concluded it was not), Defendant could not show that he was prejudiced by this failure such that the outcome of the trial would have been different.[11]  Accordingly, the Circuit held that the district court did not err in determining that Defendant was not denied effective counsel.

Commentary

This case is particularly interesting because of what it did not decide, namely, the extent to which an individual’s consent to searches by their internet service provider are sufficient to overcome Fourth Amendment considerations even when the government is working closely with the internet service provider or other private actors in conducting an investigation.  In addition, given the prominent role that NCMEC plays in child exploitation cases, it would be useful for the Second Circuit to address NCMEC’s status as a government actor, given that one of its functions is to alert authorities to illegal conduct.  This seems like an issue on which the government, defense counsel, and district courts would all benefit from a clear rule of law.  Had Defendant preserved his arguments that NCMEC’s review of his AOL emails and Omegle chats was beyond his consent to those internet service providers, the Court would have had to address whether the searches by NCMEC are protected by the Fourth Amendment, an unsettled question in the Second Circuit but one addressed in other Circuits.  See, e.g., United States v. Ackerman, 831 F.3d 1292, 1296-97 (10th Cir. 2016) (finding that NCMEC’s mandate by federal statute to collaborate with federal and local law enforcement, among other privileges beyond that of a private person, qualifies NCMEC as a governmental entity). 

With respect to Omegle, the Circuit affirmed the district court’s determination that Omegle was not a government actor and that its monitoring constituted a private search.  In reaching its determination, the Circuit relied on the district court’s factual determination after a hearing on Omegle’s monitoring practices.  Although district courts in the Second Circuit and other Circuits have similarly looked to the practices of the internet service provider to determine its status as a government entity or agent, see United States v. Keith, 980 F. Supp. 2d 33, 40, 41-42 (D. Mass. 2013); see generally United States v. Heleniak, 2015 U.S. Dist. LEXIS 15354 (W.D.N.Y. Feb. 9, 2015); United States v. Drivdahl, 2014 U.S. Dist. LEXIS 29233 (D. Mont. Mar. 6, 2014), the Circuit cited no authority other than the district court’s factual findings in reaching this determination.  It may be that this question requires case-specific factual development and is not susceptible to an easily applied rule of law.  After all, the government’s role in encouraging or directing private searches will necessarily be different in different cases.  Over time, one hopes that sufficient precedent will develop to guide parties in how they approach the challenging Fourth Amendment issues created in cases similar to this.