NY Court clarifies role of ISPs in child pornography cases
People v. Eames, 3274/2009, Supreme Court, New York County (Feb. 3, 2010)
Internet Service Providers are not an “arm of law enforcement” when they forward detected child pornography to National Center for Missing and Exploited Children.
Manhattan Supreme Court Justice Rena K. Uviller held that America Online (“AOL”), an internet service provider (“ISP”) was not “acting as an arm of law enforcement” when it forwarded information regarding the email transmission of child pornography via an AOL account to the National Center for Missing and Exploited Children and from there to the New York Attorney General, information that was subsequently used to justify a search warrant. Jason Eames, the defendant, argued that because AOL “was acting as an arm of law enforcement and was obliged to obtain a warrant before it intercepted his email.” Judge Uviller disagreed:
AOL is a private entity required by federal law to notify NCMEC if it detects the use of its service in violation of federal law prohibiting the possession and/or transmission of child pornography . . . The federal statute does not require AOL, or any other internet provider, to monitor their subscribers’ transmissions or to search their content. It is only required to notify NCMEC if it detects such materials . . . defendant would be required to demonstrate, for example that the government knew of or directed AOL to monitor its users, or that AOL monitored its users for government purposes
Eames also argued that the search warrant was issued “without reasonable cause to believe that child pornography would be found on his computer.” Granting that “New York courts have not yet addressed the issue of warrants in child pornography cases based upon information from internet providers,” Judge Uviller followed the 6th Circuit’s opinion in United States v. Terry, No. 07-3757, 522 F.3d 645 (6th Cir. April 15, 2008), which held that “AOL’s interception of two emails with child pornographic attachments sent from an AOL address to an unknown recipient” provided “sufficient nexus to connect the intercepted images to defendant’s home computer.”
New York Law Journal (Law.com): Court Clarifies Role of ISPs in Child Pornography Cases