Court Says By Agreeing To AOL's Terms Of Service, You've 'Consented' To Search By Law Enforcement

from the time-to-change-those-terms-of-service dept

Wed, Nov 5th 2014 10:30am — Mike Masnick

The ACLU's Jameel Jaffer alerts us to a district court ruling in NY that effectively says that by merely agreeing to AOL's terms of service, you've waived your 4th Amendment rights. The case is the United States v. Frank DiTomasso, where DiTomasso is accused of producing child porn -- with most of the evidence used against him coming from AOL. DiTomasso argues that it was obtained via an unconstitutional search in violation of the 4th Amendment, but judge Shira Scheindlin rejects that, by basically saying that AOL's terms of service make you effectively waive any 4th Amendment right you might have in any such information. To be fair, Scheindlin doesn't get to that conclusion breezily, and earlier in the ruling worries that one can just give up such 4th Amendment rights:

I conclude that it would subvert the purpose of the Fourth Amendment to understand its privacy guarantee as “waivable” in the sense urged by the government. In today’s world, meaningful participation in social and professional life requires using electronic devices — and the use of electronic devices almost always requires acquiescence to some manner of consent-to-search terms. If this acquiescence were enough to waive one’s expectation of privacy, the result would either be (1) the chilling of social interaction or (2) the evisceration of the Fourth Amendment. Neither result is acceptable.

Agreed. So... what's the issue here? Well, apparently AOL's terms of service are so clear to the point that it would monitor your account for illegal behavior that somehow it's okay in this case:

AOL’s policy is quite different. Not only does it explicitly warn users that criminal activity is disallowed, and that AOL monitors for such activity; the policy also explains that “AOL reserves the right to take any action it deems warranted” in response to illegal behavior, including “terminating] accounts and cooperat[ing] with law enforcement.” The policy also makes clear that AOL reserves the right to reveal to law enforcement information about “crimes[s] that [have] been or [are] being committed.” In contrast to Omegle’s policy, which includes only a passing reference to law enforcement — and which gives no indication of the role Omegle intends to play in criminal investigations — AOL’s policy makes clear that AOL intends to actively assist law enforcement. For this reason, I conclude that 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 as an ISP, but also to monitoring by AOL as a government agent. Therefore, DiTomasso’s Fourth Amendment challenge fails as to the emails.

I'm not entirely sure how to reconcile those two paragraphs. They seem to directly contradict one another. The fine line of difference here is that the court is saying the 4th Amendment rights aren't "waived," but that DiTomasso effectively "consented" to a search by law enforcement. This seems like a distinction without any real difference.

Still, there is a separate public policy question here. Many internet service providers similarly analyze emails against a hash database of known child porn images to try to catch people sending around child porn -- and there's a reasonable argument to be made that there's a good reason that this is done. In fact, just a few months ago there was news of a similar situation involving a Gmail user, where Google's automated systems alerted NCMEC to potential child porn. But, even given that, it seems troubling to suggest, even in this somewhat narrow manner, that you could effectively give up your 4th Amendment rights just by agreeing to a terms of service. These are the kinds of loopholes that the government is known to jump all over and expand until they effectively swallow the entire rule. And, of course, almost no one wants to claim that they're trying to better defend people engaged in child porn -- but that's how basic fundamental rights get chipped away. You attack those rights against the kind of people that no one wants to defend, and then that removal of rights is expanded to more and more and more people. Even if you're against child porn (and you should be), it should be concerning that a mere terms of service can be seen as official "consent" to law enforcement to a search of otherwise private communications.

Gov Uscourts Nysd 424169 23 0 (PDF)Gov Uscourts Nysd 424169 23 0 (Text)

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Filed Under: 4th amendment, consent to search, email, frank ditomasso, terms of service
Companies: aol

65 Comments

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Michael, 5 Nov 2014 @ 10:38am

All six of those people still using AOL should definitely stop right away.
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- Anonymous Coward, 5 Nov 2014 @ 12:44pm
  
  Re:
  They can't; they had their souls stolen to power the AOL routers, as per their ToS.
  [ link to this | view in chronology ]
  - art guerrilla (profile), 5 Nov 2014 @ 4:45pm
    
    Re: Re:
    how 'bout this :
    back in the day, i had probably 2-3 aolhell accounts over the years...
    i presume i agreed to some TOS one way or another...
    is it possible they still have an 'account(s)' with my name associated, maybe as 'inactive' or some such horseshit ? ? ?
    (who knows what stupid games they play to show more people using the service than there are, including obsolete/abandoned/cancelled accts)
    so-o-o-o, does that mean i 'agreed' to have aolhell/piggies plunder ANY/ALL stuff i have, regardless i don't actively use aolhell any more ? ? ?
    hmmm, i'm certain fascist control freaks would never allow any interpretation like that...
    i mean, i'm fairly certain...
    i think...
    [ link to this | view in chronology ]
Anonymous Coward, 5 Nov 2014 @ 10:44am

this is a tough situation. Where I work it is policy that any vehicle can and will be searched if it enters the property. This is very explicitly told to all future employees so that they all know that by working here you have consented to have your vehicle searched at all times while on the property.

Yes I choose to work here still because I understand and accept the privacy trade-offs and it is very transparent that a vehicle can be searched.

In this respect I have waived my 4th amendment rights while at my job.

As far as a TOS agreement if the agreement has the policy very plainly written and upfront (not buried deeply or written confusingly) then I would argue the person has given up their rights by using AOL (as stupid as it is to use AOL in the first place).
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- Anonymous Coward, 5 Nov 2014 @ 10:47am
  
  Re:
  now if all ISPs did this then it would seem best to go startup your own ISP that doesn't allow any monitoring except as required by law.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2014 @ 12:06pm
    
    Re: Re:
    It's actually a bit tricky when it comes to child porn.
    The US law is a bit oblique on what is known by the ISP and what is just stored there.
    LAW: http://www.law.cornell.edu/uscode/text/18/2258A
    
    Now if you remember back in 2008, there was a massive rush to shut down every newsgroup server because people used them to share child porn. The original case that started most of this was in my back yard so to speak: Voicenet in Bucks County, PA. From what I remember, they had actual proof that the ISP did turn a blind eye to the issue, but the newsgroups themselves were public access from every server world wide that didn't specifically take them down.
    
    The after effect is that many providers use the NCMEC database of known child porn hashes to scan servers and automatically alert authorities to avoid violating or even coming close to the Protect our children act.
    
    I personally know that Verizon, Google, and Flickr all use it, as well as some smaller companies.
    [ link to this | view in chronology ]
- John Fenderson (profile), 5 Nov 2014 @ 10:59am
  
  Re:
  "Where I work it is policy that any vehicle can and will be searched if it enters the property."
  
  Wow!
  
  If the job were so awesome that I would accept that condition to have it (hard to imagine, but still...) I would just be sure that my car was never on company property.
  
  But more to the point, this part is key: "This is very explicitly told to all future employees." Having something in the terms of service for a website doesn't count as being explicitly told, in my opinion. Terms of service tend to be lengthy, impenetrable, and designed to discourage people from reading them. Being explicitly told would be having a plainly visible and easily noticeable warning about it.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2014 @ 12:56pm
    
    Re: Re:
    "Terms of service tend to be lengthy, impenetrable, and designed to discourage people from reading them."
    
    Just like many contracts, which is why contracts are also totally unenforceable. So there's really no need to ever worry about what you're agreeing to or signing.
    
    /s
    [ link to this | view in chronology ]
  - AricTheRed (profile), 5 Nov 2014 @ 1:17pm
    
    Re: Re:
    It is hard to not drive to work at Ft Meade, MD and Bluffdale, UT and leave your car "off company property".
    [ link to this | view in chronology ]
    - John Fenderson (profile), 5 Nov 2014 @ 2:42pm
      
      Re: Re: Re:
      Ahhh... well, that's not a problem since I would literally rather starve in the street than work in those facilities anyway.
      [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2014 @ 2:04pm
    
    Re: Re:
    yes you could try carpooling with someone else's car or whatever but the property is very expansive and would take a long time to move across it without a car. In the winter you wouldn't want to cross it by walking or with a bicycle either.
    
    They don't search cars all the time but it can and does happen from time to time.
    
    One time they were searching a car and the owner had a bottle full of breast that had been left there for about a month in the summer months. The bottle after being disturbed after such a long time exploded all over the person doing the searching. Glad I wasn't involved with that search cause I heard it stunk really bad.
    [ link to this | view in chronology ]
    - Anonymous Coward, 5 Nov 2014 @ 2:05pm
      
      Re: Re: Re:
      correction breast milk and it might have been a bag
      [ link to this | view in chronology ]
    - John Fenderson (profile), 5 Nov 2014 @ 2:40pm
      
      Re: Re: Re:
      "yes you could try carpooling with someone else's car or whatever but the property is very expansive and would take a long time to move across it without a car."
      
      They don't provide a shuttle? There's no public transit? Well, then, I just wouldn't work there. Seriously, I'm amazed anyone puts up with that nonsense.
      
      "They don't search cars all the time but it can and does happen from time to time."
      
      How often searches actually happen is irrelevant.
      [ link to this | view in chronology ]
      - Atkray (profile), 5 Nov 2014 @ 3:55pm
        
        Re: Re: Re: Re:
        Remember, that if you want to move up from the TSA these are the types of jobs you are applying for.
        [ link to this | view in chronology ]
      - Anonymous Coward, 5 Nov 2014 @ 3:59pm
        
        Re: Re: Re: Re:
        I don't know what experience you have had in the past for work but most employers don't do shuttles when people can and do drive. Also mass transit is not always an option depending on where the facility is located and the operating costs are considered.
        
        If an employee can't accept the policies where he or she works then the person can quit, then find another job or run his or her own business.
        
        As far as putting up with it, when you have a family to feed you take the best option of work that you can find, yeah you might get a better opportunity in the future.
        
        Because of the transparency of the situation I don't feel like my rights are violated since I voluntarily and understandably waived them for my car so I could work.
        
        "Well, then, I just wouldn't work there. Seriously, I'm amazed anyone puts up with that nonsense."
        Which is a good indication that you don't work here. However, kudos to you if you can always find a job where the employer's policies, work, benefits, etc. are always in your favor. I just hope you realize that dream jobs like that are few and far between and that even in those dream jobs there will be aspects you don't like.
        [ link to this | view in chronology ]
  - Anonymous Coward, 6 Nov 2014 @ 2:08am
    
    Re: Re:
    "any vehicle can and will be searched"
    
    It'd be quite hard to miss that they can search the vehicles if they do it every time. That's more than being "explicitly told", that's "having it on your face every day".
    [ link to this | view in chronology ]
- Anonymous Coward, 6 Nov 2014 @ 5:54am
  
  Re:
  Yeah, because using an online service is exactly like accepting a job offer. Excuse me whilst I vomit.
  [ link to this | view in chronology ]
Michael, 5 Nov 2014 @ 10:46am

a reasonable person familiar with AOL’s policy

Is that an oxymoron, or some kind of quantum state of being both reasonable and totally unable to reason?
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Anonymous Coward, 5 Nov 2014 @ 11:02am

Sorry, but without a signature from consenting adults, it's not a valid contract. This judge needs lynching.
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Anonymous Coward, 5 Nov 2014 @ 11:10am

The defendant has no grounds to claim that his rights were violated because he was using the services of AOL to access child porn.
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- Anonymous Coward, 5 Nov 2014 @ 11:54am
  
  Re:
  That's not how rights work. Screaming "won't someone think of the children" is a great way to lose yours.
  [ link to this | view in chronology ]
Anonymous Coward, 5 Nov 2014 @ 11:10am

I wonder about the TOS that contains a typical "we can change these terms at any time" clause.

So the day you read the TOS it doesn't contain such "explicit" warnings regarding monitoring or consent. But later the TOS is changed and then it does.

If you did not read the revised TOS (and then act accordingly) and/or you've already in the past done things on the service that are now "actionable" even though they occurred in the past (prior to the TOS revision, when they were not "actionable"), but are in their "cloud" or "archives"; then you could be similarly "consenting".
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- orbitalinsertion (profile), 5 Nov 2014 @ 1:26pm
  
  Re:
  The very existence of TOS/EULA and what they can or cannot demand or enforce needs to be hashed out. These are not negotiable contracts, but usually ridiculously overbroad ass-covering and stake-claiming rules foisted upon those who frequently have little recourse to other options, if any.
  [ link to this | view in chronology ]
Anonymous Coward, 5 Nov 2014 @ 11:22am

Don't know, though...
I agree that the judge's wording is problematic, but how is this any different than when someone takes his computer to a repair place, the repair guy finds CP, calls police who then use the computer as evidence against its owner?
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- Anonymous Coward, 5 Nov 2014 @ 12:01pm
  
  Re: Don't know, though...
  The repair place doesn't monitor everything you do on your computer 24/7. The service provided by ISPs is fundamentally different from the service provided by computer repair shops.
  [ link to this | view in chronology ]
- Anonymous Coward, 6 Nov 2014 @ 3:04am
  
  Re: Don't know, though...
  In your example. The comp can't be used as evidence. Such evidence is hearsay. The tech has not seen you put the images there so cannot testify as a witness. The police cannot take the images on your comp as evidence that they've been in your possession, because the tech might have put them there. If your example could be used as evidence, anyone in a tech shop can put anyone they want in jail, and sorry but it simply does not work like that. That is not to say that as a tech one should not report it... But it is not enough to give reasonable suspicion, which this ruling also says (otherwise the entire point of testing if it has been waived is moot if they have). The thing also with the ruling here, is that the judge says that AOL is a government agent... They're not. AOL is completely private company and has nothing to do with the government and that's a key point. Because if you give your comp to the government to fix and the government finds CP on it. Then you've given the government permission to search your comp directly, and since the government was handed the comp by you, you had the comp when it had CP on, and thus was in possession of CP and therefor, that's enough for not only reasonable suspicion, but also get you convicted. So that's really one of the key points of the ruling that this article does not point out that the judge says that AOL is a government agent. My interpretation of the law and the ruling, is that this was a really poorly written ruling, by a judge with little to no tech knowledge and that the ruling will be overturned in higher courts.
  [ link to this | view in chronology ]
Anonymous Anonymous Coward, 5 Nov 2014 @ 11:24am

Constitution Supercedes
And here I thought one could not give up constitutional rights via a contract. Any lawyers about?
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- Anonymous Coward, 5 Nov 2014 @ 11:30am
  
  Re: Constitution Supercedes
  This is why trade agreements can be very bad for a country. It is possible for a government to sign away via contract the rights of individuals of that country.
  [ link to this | view in chronology ]
  - Cal (profile), 6 Nov 2014 @ 5:53am
    
    Re: Re: Constitution Supercedes
    You are incorrect. All MUST be in Pursuance of the US Constitution to be lawful here - ALL.
    
    Nothing here in the USA can supersede the US Constitution. That is written into it. But if that is not enough...
    
    The Supreme Court of the United States, 1866 - Yes, it is not only applicable, it is more applicable then the ones the domestic enemies within the judicial branch of the USA have been turning out in the last few decades:
    "The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."
    
    This also is saying that there is NO SUCH THING AS "martial law" or "emergency powers", which is just Military taking over and making a decision based on who is in charge of operations in that area at that time. Here in the USA, it is the US Constitution, NOT a person in any position they might occupy.
    
    From the Father of the US Constitution, James Madison: "Because if . . . [An Unalienable Natural Right of Free Men] . . . be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: It is limited with regard to the coordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires, not merely, that the metes and bounds which separate each department of power be invariably maintained: but more especially that neither of them be suffered to overleap the greater Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The people who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are Slaves"
    
    Let's take the Healthcare Act (Obamacare); Judge Thomas M. Cooley: "Legislators have their authority measured by the Constitution, they are chosen to do what it permits, and NOTHING MORE, and they take solemn oath to obey and support it. . . To pass an act when they are in doubt whether it does or does not violate the Constitution is to treat as of no force the most imperative obligations any person can assume."
    
    Everyone who signed that is a criminal.
    [ link to this | view in chronology ]
- John Fenderson (profile), 5 Nov 2014 @ 11:36am
  
  Re: Constitution Supercedes
  "And here I thought one could not give up constitutional rights via a contract"
  
  You can certainly waive "constitutional rights" through contracts. It's done all the time. Have you ever signed a non-disclosure agreement? You've waived a "constitutional right".
  
  I put "constitutional rights" in quotes here because it's really misusing the term a bit in this context, but that's a different discussion.
  [ link to this | view in chronology ]
  - Anonymous Coward, 5 Nov 2014 @ 11:42am
    
    Re: Re: Constitution Supercedes
    Constitutional rights don't apply to agreements made by private parties. They only exist to protect against government oppression.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 5 Nov 2014 @ 12:00pm
      
      Re: Re: Re: Constitution Supercedes
      Yes, this is what I was alluding to. However, this boundary can get very fuzzy and so it's a long discussion all by itself. This exact case is an example of the ambiguity: it's a private agreement, but is interpreted in a way that allows the government itself to ignore constitutional rights.
      [ link to this | view in chronology ]
      - Anonymous Coward, 5 Nov 2014 @ 12:40pm
        
        Re: Re: Re: Re: Constitution Supercedes
        The controlling statement from the decision (and highlighted in the article) is this:
        ...I conclude that 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 as an ISP, but also to monitoring by AOL as a government agent.
        Is the leap from "The policy also makes clear that AOL reserves the right to reveal to law enforcement information about 'crimes[s] that [have] been or [are] being committed.'” to "AOL [is] a government agent" as breathtaking as it appears?
        [ link to this | view in chronology ]
        
        orbitalinsertion (profile), 5 Nov 2014 @ 1:29pm
        
        Re: Re: Re: Re: Re: Constitution Supercedes
        Honestly, i think that wording is bad. The intent it displays is bad.
        
        Although I don't have a problem with certain flags being raised and a company reporting criminal activity it has noticed, any further evidence collection should be done under warrant.
        [ link to this | view in chronology ]
Anonymous Coward, 5 Nov 2014 @ 11:38am

anyone care to name another country that openly changes the law to suit the case at the time? i thought this sort of behavior was for dictatorships, not what is supposed to be a democratic country! if in the 'Terms of Service' it stated that agreeing with them with a particular company it ALSO meant Law Enforcement had the right to search what you've been doing, i very much doubt of AOL would manage to keep it's customers for very long. Scheindlin may not have got to that conclusion 'beezily', but she still got there! disgraceful and disgusting outcome!!
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Anonymous Coward, 5 Nov 2014 @ 11:40am

I would urge everyone to reconsider the contracts of services we have all given our consent to and whether it is time to rethink those decisions.
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Anonymous Coward, 5 Nov 2014 @ 11:44am

Consent to search by third party
I think the crucial issue is that you in the government's view waive a reasonable expectation of privacy by using a third party online service, whereas you according to Judge Scheindlin only waive that expectation when you sign up to an online provider who actively cooperates with law enforcement.

The solution is easy: Don't sign up with online services with such anti-privacy clauses in their Terms of services or encrypt everything.

I think that the article is too friendly with Google's scanning for child pornography.

There is no legitimate reason for scanning private email even for hashes matching child pornography.
There is no law requiring any service provider to intercept the contents of its users communication.
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- Anonymous Coward, 5 Nov 2014 @ 11:52am
  
  Re: Consent to search by third party
  >There is no legitimate reason for scanning private email even for hashes matching child pornography.
  Sure there is, the company can do so for any reason. Most of this is voluntary anyway.
  
  >There is no law requiring any service provider to intercept the contents of its users communication.
  Yeah, except for CALEA, soon to be CALEA II.
  [ link to this | view in chronology ]
- John Fenderson (profile), 5 Nov 2014 @ 2:46pm
  
  Re: Consent to search by third party
  "The solution is easy: Don't sign up with online services with such anti-privacy clauses in their Terms of services or encrypt everything."
  
  I don't think you can trust any third party services with this sort of thing regardless of what's in their ToS. The best choice is to avoid using them at all to the greatest degree that you can.
  
  If you don't own the machine that's provide the service to you, you must assume that the service is hostile. It's the sad truth in today's world.
  [ link to this | view in chronology ]
Ed Allen, 5 Nov 2014 @ 11:54am

You people seem to be OK being classified as "unindicted felons"
As Rick Falkvinge points out
here...https://torrentfreak.com/letter-copyright-monopoly-140921/ the
police did not need companies to spy on everybody all the time back when
we only had snail-mail.

You are saying it is OK for AOL or any other entity to require that we
prove our innocence constantly.

That machines have the job of turning us in at every moment for whatever
reason their programmer thought was "bad enough" to garner special
attention by human guards.

It is sheeple like you who allowed this gulag to be built around us.

"For the children" is as much a facade as "National Security". Both are
bullshit excuses for more tyranny.

We had mail and privacy in this country for close to two hundred years
before law enforcement started shaming critics into silence to allow corrupting
every facet of life.

In my opinion we were better off then.
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- orbitalinsertion (profile), 5 Nov 2014 @ 1:38pm
  
  Re: You people seem to be OK being classified as "unindicted felons"
  Which people? I think you aren't responding to anyone but simply posting a rant. I may agree with some basic principles you hold, but you said "sheeple" and "gulag", and keep referring to a "you" that certainly doesn't seem to be in a majority here. You also make appeals to a mythical past.
  [ link to this | view in chronology ]
  - Ed Allen, 5 Nov 2014 @ 2:03pm
    
    Re: Re: You people seem to be OK being classified as "unindicted felons"
    A rant, certainly.
    
    Please point to a single case where all letters to and from a city were opened
    and what court approved it ? Without that "mythical" seems to be a matter
    of what you are willing to accept.
    
    Show me where we have a "guilty until proven innocent" legal system.
    
    But, of course, you are "free" to live within the confines laid out for you.
    
    Life without freedom sounds closer to gulag than "mythical" to me.
    [ link to this | view in chronology ]
Anonymous Coward, 5 Nov 2014 @ 11:56am

Re:
"Yeah, except for CALEA, soon to be CALEA II. "

This is not about CALEA, which only requires intercept capabilities but about the service provider scanning for illegal contents without an express legal requirement.

It's illegitimate if one's opinion is that a service provider should only be a neutral carrier of information.
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AnonCow, 5 Nov 2014 @ 12:00pm

Constitutional Rights should not be waivable by a click-thru EULA or TOS. This is a clear end-run around due process because somewhere in your daily Internet usageone or more service providers will have similar language in their TOS.

It also allows the government to pressure businesses that don't have the language in their TOS to add the language in exchange for specific quid pro quo or, at a minimum, some guarantee of safe harbor.

And long standing concerns about who decides what is actual criminal activity still stand.
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Violynne (profile), 5 Nov 2014 @ 12:01pm

There's a bigger issue at stake here, and it's clearly visible the DoJ (et al) are circumventing the Constitution.

What this idiotic judge fails to take into account is that AOL's ToS (et al) doesn't give users the information the federal government is giving these digital files to ISPs in order to look for crimes (past, present, future).

That's a massive breech of our rights. If the FBI wants to sit down and examine a user's account using these files they produce, then a court order is needed and the information obtained from the ISP.

Instead, and there's strong evidence of coercion by the DoJ, they give files to them and "ask them" to circumvent the Constitution.

There's a huge difference between an automated process pulling out emails stating words like "bomb", "president", "12th of November" and "Oh, we found child pornography by happenstance".

That's the distinction this idiotic judge should have concluded, but instead, the mentality of "think of the children because my job depends on it" erodes our Constitution.

Way to go, Shira Scheindlin. You just took us one step closer to being the Police States of America.
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Anonymous Coward, 5 Nov 2014 @ 12:08pm

Lazy cops + stupid legal argument = potential disaster
What idiot came up with this asinine legal strategy, anyway?! If a pedophile walks because they couldn't be bothered to actually do their jobs - due diligence, getting warrants, etc. - heads had better roll!
...They'd just use it as an excuse to roll out more Orwellian spying, wouldn't they. I hate this stupid government.
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Anonymous Coward, 5 Nov 2014 @ 12:43pm

It's not that he somehow waived some right to privacy by clicking a EULA or ToS he didn't read.

Monitoring for illegal activity is a feature of AOL that he specifically signed up for.
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Anonymous Coward, 5 Nov 2014 @ 1:25pm

Am I missing something? This seem very simple. AOL can scan email and if the find something illegal they can report that to the FBI. Then the FBI get a warrant to search the account info of that user. Very simple.

Did the FBI not get a warrant in this case? If that the case then this judge is totally wrong, not just because it would violate the 4th amendment rights, but because its not needed. There is a thing call a search warrant that takes care of this case.

Or am I missing something?
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- Anonymous Coward, 5 Nov 2014 @ 1:37pm
  
  Re:
  Am I missing something? This seem very simple. AOL can scan email and if the find something illegal they can report that to the FBI. Then the FBI get a warrant to search the account info of that user. Very simple.
  
  That is a specialization of what was the basis of police work, someone tells them something, they take it to a judge, they get a warrant, no problems.
  However the police have alienated so many people now, that the few people talk to them and at that mainly companies under duress, and so the police come to believe that unless they can seize information without a warrant they will never get any evidence. That rapidly becomes, we do can always look for evidence without a warrant. They now bully people into allowing warrantless searches.
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  - orbitalinsertion (profile), 5 Nov 2014 @ 1:40pm
    
    Re: Re:
    ^ This.
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Anonymous Coward, 5 Nov 2014 @ 1:54pm

Re: modify your e-mail addresses with IdnCtGSWaW in them...
yes because putting this in the subject line will legally stop all governments from looking at and getting a copy of your email.
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- DigDug, 6 Nov 2014 @ 8:25am
  
  Re: Re: modify your e-mail addresses with IdnCtGSWaW in them...
  It's a way to show, in court, that you did not consent, regardless of any terms of service.
  
  And it wasn't a subject line, it was the e-mail address.
  
  But hey, you don't know how to read anyway, so it doesn't matter.
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tqk (profile), 5 Nov 2014 @ 1:57pm

What's the problem again?
I must be missing something here since I see nothing wrong with this in the least. WRT those two paragraphs Mike has a problem with, the first is the general case, and the second is specific to AOL.

As someone else mentions, 4th Amendment constrains gov't, not private entities. If I don't like that "search your car" warning, I park off their property. Lots of places have search you anytime built into the hire agreement (Amazon, Royal Canadian Mint).

Certainly "we can change our ToS at anytime" sucks and should be illegal if they're not also forced to inform you of changes and re-sign acceptance.

AOL is a private concern and, within the law, should have the right to run their business any way they want. If that includes CP paranoia along with buddy-buddy relationships with LEOs, that's up to them and you should check for such things if you don't want to involve yourself with ops that do that.

The much overused canard is, "If you have nothing to hide, you have nothing to fear." In the case of private concerns you voluntarily choose to deal with, it does not apply. If my employer suffers a rash of insider theft of property, I'm not going to complain security searches me when exiting their property. I'm not a thief, and I look forward to them catching the creep who is.

There's a lot of screwed up law going on in the US these days, but I can't see that this is part of that. The judge made the right decision.

About the only bit of this that bothers me is Mike's blanket statement that we all should be against CP. Forgive me, but I don't think an X rated comic strip constitutes CP. No children were harmed producing it. The law there is overly broad.

I'm not seeing the problem here, sorry.
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- Anonymous Coward, 5 Nov 2014 @ 2:18pm
  
  Re: What's the problem again?
  There is no problem with anybody taking evidence to the police. They can then use that evidence to get a warrant. The problem is that they acted without a warrant, and therefore without any limitation on their searches.
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- Ed Allen, 5 Nov 2014 @ 2:30pm
  
  Re: What's the problem again?
  Enlisting "voluntary" agents to do what the Government is SPECFICALLY forbidden to do itself is a corrupt act.
  
  All parties should be subjected to trial for treason.
  
  That judges do not see it that way shows what years of corruption has done to all branches of government.
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- Mike Masnick (profile), 5 Nov 2014 @ 4:38pm
  
  Re: What's the problem again?
  As someone else mentions, 4th Amendment constrains gov't, not private entities. If I don't like that "search your car" warning, I park off their property. Lots of places have search you anytime built into the hire agreement (Amazon, Royal Canadian Mint).
  
  AOL is a private concern and, within the law, should have the right to run their business any way they want. If that includes CP paranoia along with buddy-buddy relationships with LEOs, that's up to them and you should check for such things if you don't want to involve yourself with ops that do that.
  
  AOL has every right to tell the gov't. Then the gov't needs to use that info to get a warrant. That didn't happen here.
  
  That's the issue.
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  - Anonymous Coward, 6 Nov 2014 @ 4:40am
    
    Re: Re: What's the problem again?
    From what I remember, the government never actually has to search the data before it's given proof. IE. The crawler searching the files receives a hit, an employee at the company is notified. That employee reviews the file in case of a duplicate hash, and then makes the decision to notify the authorities with the account information, such as name, address, ip, and complete communication.
    
    Here's an example of the employee at Google: http://arstechnica.com/business/2012/08/the-worst-job-at-google-hunting-for-child-porn-beheading-vid eos/
    
    Here's the actual legal requirements of the report:
    (b) Contents of Report.— To the extent the information is within the custody or control of an electronic communication service provider or a remote computing service provider, the facts and circumstances included in each report under subsection (a)(1) may include the following information:
    (1) Information about the involved individual.— Information relating to the identity of any individual who appears to have violated a Federal law described in subsection (a)(2), which may, to the extent reasonably practicable, include the electronic mail address, Internet Protocol address, uniform resource locator, or any other identifying information, including self-reported identifying information.
    (2) Historical reference.— Information relating to when and how a customer or subscriber of an electronic communication service or a remote computing service uploaded, transmitted, or received apparent child pornography or when and how apparent child pornography was reported to, or discovered by the electronic communication service provider or remote computing service provider, including a date and time stamp and time zone.
    (3) Geographic location information.—
    (A) In general.— Information relating to the geographic location of the involved individual or website, which may include the Internet Protocol address or verified billing address, or, if not reasonably available, at least 1 form of geographic identifying information, including area code or zip code.
    (B) Inclusion.— The information described in subparagraph (A) may also include any geographic information provided to the electronic communication service or remote computing service by the customer or subscriber.
    (4) Images of apparent child pornography.— Any image of apparent child pornography relating to the incident such report is regarding.
    (5) Complete communication.— The complete communication containing any image of apparent child pornography, including—
    (A) any data or information regarding the transmission of the communication; and
    (B) any images, data, or other digital files contained in, or attached to, the communication.
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  - Anonymous Coward, 6 Nov 2014 @ 6:17am
    
    Re: Re: What's the problem again?
    It seems to me that if AOL got concerned and turned over all the evidence to the LEO then the prosecutor doesn't need a waarant in this case, but every bit of evidence that AOL did not turn over when alerting the LEO to the suspicious behaviour of the user should have a warrant associated with it.
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Anonymous Coward, 5 Nov 2014 @ 4:24pm

Judge Scheindlin Repeals ECPA
The Electronic Communications Privacy Act (ECPA), Pub. L. 99–508, § 102, amended the Wiretap Act, adding par. (3). to 18 U.S.C. § 2511

(3)
(a) Except as provided in paragraph (b) of this subsection, a person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication (other than one to such person or entity, or an agent thereof) while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.

(b) A person or entity providing electronic communication service to the public may divulge the contents of any such communication—
(i) as otherwise authorized in section 2511 (2)(a) or 2517 of this title;
(ii) with the lawful consent of the originator or any addressee or intended recipient of such communication;
(iii) to a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or
(iv) which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, if such divulgence is made to a law enforcement agency.

Judge Scheindlin has now repealed this portion of the ECPA.
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Anonymous Coward, 5 Nov 2014 @ 8:25pm

why even have laws in the first place if those that claim they are going to enforce them care not for the laws that protect citizens rights
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Anonymous Coward, 6 Nov 2014 @ 5:57am

All this because getting a warrant is soooo damned difficult - right?
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shane (profile), 6 Nov 2014 @ 8:08am

Learning to Love the Police State
I've been observing for years now that, really, the internet is NOT like being in your house with a friend. It is a lot more like having a conversation with your friend across the street using code. What you do on the internet is public.

I've watched with increasing concern as the internet has been designed increasingly around "cloud services" - basically putting everything you do on the web somewhere. I have never liked this business model.

Maybe some folks will begin to rethink the downhill-only traffic flow model and insist they store their stuff on THEIR OWN COMPUTERS, and only transmit over the internet from and to THEIR OWN DEVICES so that they still own the instruments that contain their data.

That's the REAL defense against this nonsense. Stop letting the service provider dictate your business model. Stop buying sorry "services".
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GEMont (profile), 9 Nov 2014 @ 3:28pm

Dance around the dying dinosaurs.
Hopefully this news will have the beneficial effect of killing AOL once and for all. Better late than never I always say.

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- tqk (profile), 9 Nov 2014 @ 3:47pm
  
  Re: Dance around the dying dinosaurs.
  Someone told me a while ago that my choice of webmail provider (mail.com) is actually AOL in the background. It's utterly unlike the walled garden AOL that I knew of in the '90s. It's just a decent, free webmail provider. You can buy enhanced features (ie. IMAP for ca. $20/a.), but for free, I doubt they can be beat. No, gmail is not an option (for, I think, many obvious reasons).
  
  I think they're doing a fine job. I can have free IMAP from my current ISP, and probably will eventually, but for now, mail.com just works. YMMV. I've better things to do at the moment than convert.
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  - GEMont (profile), 12 Nov 2014 @ 2:07am
    
    Re: Re: Dance around the dying dinosaurs.
    So, Free is a very expensive business model.
    Who or what thus pays AOL for this service?
    
    Is it advertisement driven?
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