The Vermont Supreme Court rejected a challenge from a Vermont man of his convictions on child pornography and sex assault charges who claimed his emails were illegally searched, leading to his criminal prosecution and 22-year-to-life prison sentence.
The state’s highest court ruled that his internet service provider, AOL, wasn’t acting as an agent of the government or law enforcement when it digitally searched emails as outlined in the company’s terms of service agreements with customers, including Stuart Lizotte Jr. of Rutland.
Attorneys for Lizotte contended that his rights were violated when AOL detected suspected child pornography on his emails and provided that information to the National Center for Missing & Exploited Children.
NCMEC then opened the emails and provided them to law enforcement, according to court filings.
“We conclude that AOL was not acting as an agent of law enforcement when it searched defendant’s transmissions, and that NCMEC and law enforcement did not expand AOL’s private search by viewing the file already identified by AOL as containing child pornography,” Justice Marilyn Skoglund wrote in the high court’s unanimous decision.
“In addition,” the ruling stated, “any expansion of the search by opening the related email did not invalidate the warrant because the other information in the affidavit independently provided probable cause to search.”
Vermont Defender General Matthew Valerio, whose office represented Lizotte in the appeal, called the ruling “intellectually” interesting.
“Our court kind of split the baby,” he said Friday of the decision. “There’s some interesting legal gymnastic going on.”
Vermont Solicitor General Benjamin Battles of the attorney general’s office, the entity that prosecuted the case against Lizotte, said Friday he was pleased with the ruling, but added it did leave some questions unanswered.
“The court kind of dodged the issue of whether this individual had a reasonable expectation of privacy in the content of an email that was forwarding child pornograpny,” Battles said. “That’s kind of an issue for another day.”
Battles added, “It is a significant takeaway that if there is an expectation of privacy, there’s potentially an issue of law enforcement reading an email that hadn’t been reviewed by the provider.”
Lizotte pleaded guilty to charges of aggravated sexual assault, possessing child pornography and promoting child pornography. He was sentenced last year to 22-years-to-life behind bars.
As part of his plea, according to court records, he reserved his right to appeal an earlier decision by Rutland County Superior Court Judge Cortland Corsones denying his motion to suppress evidence in the case.
According to court records, AOL detected suspected child pornography on Lizotte’s email using an algorithm designed to detect such content, which compares digital information that is part of a file to previous images known to be child pornography.
In such cases AOL then terminates a sender’s account, court records stated, and files a report with the Virginia-based National Center for Missing & Exploited Children, a private, nonprofit corporation working to help find missing children, reduce child sexual exploitation, and prevent child victimization.
Staff at AOL did not view either the content of Lizotte’s emails or a video attachment at the time the report was made to NCMEC, but had previously viewed the image and stored its digital information, according to court filings.
NCMEC staff viewed the video attachment and opened the emails, court records stated, tracing the user to the Rutland area “using publicly available internet tools,” and sent reports to the Vermont attorney general’s office for further review.
The attorney general’s office, through its Internet Crimes Against Children task force, opened and viewed the emails, court records stated, and then applied for a warrant to search Lizotte’s home and any of his electronic devices.
According to court papers, officers seized a laptop and thumb drive, which contained child pornography, including videos of Lizotte sexually assaulting two children.
Lizotte’s attorney moved to suppress the evidence obtained from those warrants. His lawyer argued that he had a “reasonable expectation” of privacy in his emails and related attachments and that his rights were violated.
At the trial court level Judge Corsones denied that motion to suppress, basing the ruling, in part, on Lizotte’s agreement to the terms of service with AOL, which notified him that his communications “could be accessed or disclosed if there was a good faith belief a crime had been committed.”
“With no expectation of privacy, the court concluded there was no violation of defendant’s rights,” the Supreme Court wrote that Corsones had ruled.
Also, Corsones found that NCMEC was not acting as law enforcement since it had “no control over any subsequent criminal investigation and does not follow up with law enforcement on any tips that are sent.”
The Supreme Court, in its decision, ruled that AOL was not acting as an agent of law enforcement, and therefore, the justices did not even reach the question of whether by accepting AOL’s terms of service agreement Lizotte consented to the search emails.
“AOL monitored defendant’s transmissions based on its business interest, not because it was encouraged or directed to by government, and the government did not know about or participate in the action,” the ruling stated.
“This holding is consistent with the decisions of other courts that ISPs do not act as agents of law enforcement by monitoring the content of transmissions for suspected child pornography.”
However, in a bit of a twist, the Supreme Court did state in its ruling that NCMEC was acting in a law enforcement role, but in doing so, did not expand on the previous private actions by AOL.
As a result, the Supreme Court found “no grounds to invalidate the warrant,” the decision read.
Valerio, the state’s defender general, said rulings around the country have differed on whether NCMEC is a private or government actor.
“On the good side, from sort of the defense perspective, is in Vermont the NCMEC is treated like an arm of government and what they do should have some impact on the requirements for a warrant or the like,” Valerio said, adding, “but it didn’t seem to in this case.”
Battles, with the attorney general’s office, said while the ruling is “significant,” he didn’t know if it would have a big effect on cases going forward.
“It is something we will keep in mind as we receive reports from NCMEC,” he added.
Officials with both Oaths Inc., which now operates AOL, and the National Center for Missing & Exploited Children could not be reached for Friday for comment.
Lizotte, 26, is currently serving his sentence in the Springfield prison.
Read the story on VTDigger here: High court rules AOL didn’t violate Vermont man’s rights in child porn case.