Mapp Hearings, ISP Terms of Service, and User Privacy

In the “routine” Mapp hearing¹ litigating the legality of a search and seizure of evidence pursuant to a consent search, a police officer may testify as to the circumstances under which the owner-defendant consented to a search. The defendant may respond that such consent was either not given or the search went beyond the scope of the consent, among other possible responses. Frequently, the litigation concerns the parameters and interpretation of a written consent to search. The government has a heavy burden to demonstrate that the consent was voluntary, but if established there is no additional requirement of probable cause.² At the conclusion of the hearing, the court will usually give the attorneys the opportunity to make oral arguments, written submissions, and then subsequently render a decision based on the law, and its determination concerning the credibility of the witnesses. In the digital era, the compass points are the same, but the methodologies used to get to the final destination have evolved with the technology. Today, with the ubiquitous employment by the general public of Internet-based communications including social media networks, courts now face the question of whether an Internet service contract agreed to by a user (also referred to as a subscriber, customer or member) with their Internet service provider (ISP) constitutes sufficient legal basis for consent to search the customer’s Internet account not only by the service provider but by government agents. This article addresses these issues.

Terms of Service

ISP’s routinely require customers to execute terms of service agreements. When the agreements become the focus of a suppression hearing, questions concern exactly what the customer consented to by agreeing to the ISP’s terms of service, and if the customer consented to a search by the ISP in a law enforcement capacity. Terms of service agreements are usually very broad in nature, and may not specifically state that third parties may be involved in the screening of a member’s email to enforce legal parameters and the ISP’s member standards. Some ISP’s terms of service generally indicate that they will respond to legal process in compliance with federal privacy statutes.³

Fourth Amendment Issues