from the doing-a-terrible-thing-badly dept
Some Playstation Network users tried to use Sony's messaging system to transfer child porn back and forth. The ad hoc Playstation Playpen was reported by users, and Sony went digging into their messages and discovered illegal images, which it then -- as it is statutorily required to do -- turned this information over to law enforcement and reported it to NCMEC (National Center for Missing and Exploited Children). Unsurprisingly, this led to the arrest of one of those trading illegal images.
So far, there's nothing surprising about this chain of events, much less the court's denial of the defendant's motion to suppress. What is surprising is the court's claim that the Fourth Amendment doesn't protect PSN users' data and communications.
If you have any legally incriminating information sitting in your PSN account, don't count on the Fourth Amendment to protect it from "unreasonable search and seizure" by Sony without a warrant. A district court judge in Kansas has ruled in a recent case that information Sony finds has been downloaded to a PlayStation 3 or a PSN account is not subject to the "reasonable expectation of privacy" that usually protects evidence obtained without a warrant.
While this summation is mostly correct, the fact is that child porn is something actively policed by every service provider and whose terms of service specifically warn users against trafficking in illegal content. Even more specifically -- as is pointed out in the decision [PDF] -- users are told Sony will monitor communications and uploaded content if it feels the need to do so.
there is no requirement or expectation that [Sony] will monitor or record any online activity on PSN, including communications. However [Sony] reserves the right to monitor and record any online activity and communication throughout PSN and you give [Sony] your express consent to monitor and record your activities . . . Any data collected in this way, including the content of your communications, the time and location of your activities, your Online ID and IP address and other related information may be used by us to enforce this Agreement or protect the interests of [Sony], its users, or licensors. Such information may be disclosed to the appropriate authorities or agencies.
In this case, PSN moderators were tipped off by PSN users. This is one form of "private search," in which users spotted something violating the Terms of Service and passed it on. Sony has a legal obligation to report suspected child porn to law enforcement, so it accessed the reported accounts. This is another "private search" -- one that's completely lawful, provided for by terms agreed to by the PSN users, and, honestly, something that's so far from unexpected as to provoke wonder about the arrested user's overall experience with the internet in general.
What it isn't, however, is any sort of indication that certain user communications or data are not protected by the Fourth Amendment. There's a certain amount of data that falls under the Third Party Doctrine, which isn't subject to the Fourth Amendment. But to obtain the content of communications, or access files stored by users, the government would most likely still have to seek a warrant.
This differs from the Best Buy Geek Squad cases in that there's no evidence of an ongoing relationship between law enforcement and Sony where moderators are paid (or prompted) to seek out evidence of illegal activity, acting as a warrantless proxy for the government that violates the spirit -- if not the letter -- of the "private search" exception.
The defendant tried arguing that NMCEC's search of the files sent to it by Sony was not a private search and violated his Fourth Amendment rights. The court takes a look at the case cited (one we covered here previously) and finds NMCEC's search did not exceed the scope of the private search. Whether or not it acted as a government agent, it did not perform an unconstitutional search.
In Ackerman, AOL’s filter identified one of four images attached to the defendant’s email as child pornography. Id. As soon as AOL identified the hash value match, it forwarded the email in a report submitted to NCMEC. Id. The NCMEC analyst viewed the email and the four image attachments and determined that all four of the attached images—not just the one that AOL’s filter had identified—qualified as child pornography. Id. So, Ackerman’s undisputed facts established that NCMEC opened and viewed information other than the image that was the target of AOL’s hash value match and “that AOL had not previously examined.” Id. at 1306–07. NCMEC had exceeded, and did not merely repeat, AOL’s private search and the Circuit thus held that NCMEC had violated the defendant’s Fourth Amendment rights. Id.
But here, the facts differ. No evidence even suggests that NCMEC exceeded the scope of Sony’s private search. Indeed, the logical inference the court draws from the undisputed facts is that NCMEC’s review did not exceed Sony’s private investigation. Mr. Meininger testified that Sony does not use a hash value matching system. It follows that all of the information Sony sent NCMEC was first reviewed by a Sony employee. Mr. Meininger testified that the Sony Moderation Team “use[s] human eyes” to review every grief report it receives. So, when the Sony Moderators received the initial grief report about Susan_14 on June 6, 2012, a Sony Moderator opened the report and viewed the message and attached image. The court finds that NCMEC did not exceed the scope of Sony’s private search when it reviewed Ms. Kawaguchi’s August 8, 2012 report and found that it did not include child pornography.
Now, the court does make the case that the user's agreement to Sony's Terms of Service somehow strips away privacy protections for PSN account holders. It can be argued, as the court does here, that agreeing to these terms means knowingly giving up your expectation of privacy. But there's still a lot of ground to be covered between Sony's statutorily-required reporting of suspected child porn and the government calling up Sony and making warrantless demands for users' communications and data. That really isn't explored in this opinion as it's not part of the underlying case.
The government did obtain a warrant to search the contents of the PS3 owned by the suspect -- something the court says has a "reduced" expectation of privacy thanks to the user's agreement with Sony's terms of service. Nowhere does the court say the expectation of privacy is eliminated entirely by the terms of service. It only says the following, and what it does say isn't written as a clear-cut determination.
The agreement also warns users that they must not use the PSN to violate any local, state, or federal laws, and that any information Sony acquires while monitoring the users’ activities may be turned over to appropriate law enforcement authorities. This agreement seemingly prevented defendant from having a reasonable expectation of privacy in information he stored on his PS3 device.
What did fall under the Third Party exception -- and the private search exception -- were the files reported to Sony, which then reported them to NMCEC and law enforcement. At no point does this chain of events suggest Sony views users' expectation of privacy in the same light the court ("seemingly") does. (The FBI doesn't view it this way either, as it obtained a warrant to search the contents of the suspect's PS3, and law enforcement tends not to get a warrant unless it absolutely has to.) The court's reading of the Fourth Amendment is limited to this case and some roughly-analogous precedent. But while it leans towards an interpretation of the Third Party Doctrine that would cover almost anything that touches Sony's Playstation Network (including files downloaded via the network), it doesn't go so far as to suggest all of it can be had without a warrant.
It also goes off on a tangent suggesting there's no expectation of privacy in communications because the contents are disclosed to the recipient... but that's clearly a completely wrong interpretation of the expectation of privacy and warrant requirements in general. Warrants still need to be sought to obtain the content of emails, etc. in most cases, no matter what sort of monitoring users agreed to when they opened their accounts. It's kind of a sloppy decision that builds on some sloppy defense arguments and reaches critical muddle at this point. At any rate, the decision will be appealed, which will hopefully clean up the district court's questionable Third Party reasoning, but is unlikely to find Sony's private search a violation of the Fourth Amendment.
Monitoring networks for child porn has been around for decades. Anyone asking for or distributing child porn using a third-party messaging service is basically begging for a visit from the FBI. It plays right into the most well-known and widespread "private search" there is: the statutory requirement for platform owners to report suspected child porn to the government.