fourth amendment an evolving segment of cyber law where the courts and defense counsel are challenged to keep up with the rapid pace of technological change in seeking remand to the district court on the agency  issues we view this case is about the unintended consequences of less than fully informed decisions the appellant used internet service providers well known a o l and the more obscure omega which is sites doesn't require even a password or an id and he didn't realize when he was using them that he was going to be construed as having waived his  surrender all his fourth amendment rights and make a list not a government actor then the fourth amendment has nothing to do with it right well what was never decided in this case because it was really decided without  private actor or a government agent the court didn't reach it because the court held that that you consented to the terms and among the terms is that they can search what we believe that that conclusion was clearly erroneous you want to because there was absolutely no evidence whatsoever presented to the district court about how our client may have consented to the terms as no evidence that he had knowledge at least click that they have read the terms or another or did you make this argument in the district court we never got that far your honor i mean it repeatedly and i i mean the argument that  u had to click on what happened your honor was this was decided without a hearing and on affidavits alone i mean you have well there was no evidence i mean there was no evidence of how he he it was just a court just simply concluded it's obvious that he consented no evidence whatsoever there was nothing presented in any government affidavit about how he may have rendered consent there was nothing presented about how these sites even work  explain its side of the case the district court just simply assumed that he had consented and i mean there's absolutely no evidence anywhere to support it so and because a judge made that the court made that decision she neglected to reach don't have to take it what i would point the court to is that over and over again trial counsel complained of an information vacuum or an information void and sought a hearing  discovery and to destroy the government oppose those are those requests and ultimately the district court made a decision without having a hearing and i believe unless i mean simply her decision that there was consent shows that she was less than fully informed about you know what really happened here and you know normally this court review is a more well developed record and what we would really like to do is just have a chance to you know make all these arguments once comprehensively and have a court decide them rather than everybody is you know basically right now there's been assumption after assumption and without anybody reaching actual evidence  continued well there are i mean there are other defenses the government might raise are that they that the agents acted in good faith  misled i think they have a duty to national office i agree on i believe that they have a duty to fully disclose and i don't believe that they fully disclosed to the magistrate court that and c m e c first of all its role in the case at all in amassing probable cause and secondly that and c and b c had been found by other courts to be an agent of the government so absent that information i'm not sure that the magistrate could have house correct there were a number of forrester warrants to the internet service providers and there was a warrant to search the apartment as well when we're talking about the warrant to search  circumstantial evidence case where the source of the prior information was a thirteen year old girl who was seemingly disturbed who identified appellant but at the time she identified a t as the perpetrator she was herself a target of the investigation i mean the police just went to her you know she had been identified as a victim at that point the police went to her house and were seeking to find  who downloaded and uploaded child pornography from the internet and in the course of that investigation they arrived at the conclusion that it was a girl and her computer and at that point she's i'm sure a thirteen year old never had any exposure to police she's looking to shift blame and you know she named appellant as a person who made her do all of this and that can the other connections in the probable cause affidavit only go to the apartment they don't go to appellan nick nick was a government actor responsible for the unlawful searches before the district court and that claim is waived at a minimum his argument should be subject to plain error review by this court but as argument would fail under any standard of review for at least three reasons first there was no fourth amendment violation because the evidence was obtained through private searches conducted by private trial with respect to direct evidence of the charge crimes the evidence actually came from user generated complaints not any search conducted by  l so that's one factual distinction on the record in addition the testimony available in the affidavit that was submitted to the court set forth a sufficient basis of child pornography and represented the higher count at trial and even setting aside the disputed evidence the overwhelming evidence supported guilt on count two as well the charge distribution of child pornography even putting aside the evidence and the screenshots showing di tomaso distributing child pornography over omega on three different dates the evidence also old girl to send him something though your honor that's a distinct count so the conduct with respect to the thirteen year old child victim related to the production of child pornography and that was count one of the evidence which the appellant is challenging but also through at least two chats over a separate website that the opponent has not challenge a website called random which essentially is also in other anonymous  platform very similar to make all that additional evidence in support of that count count to the distribution included data from around the law enforcement program showing that ip addresses linked to t tomatoes apartment distributed child pornography or peer to peer networks on multiple occasions in late two thousand and thirteen some within days of the chat random screenshots and one of the  cell site evidence an x box records presence in his apartment at the times of those distributions and other evidence seized from forensic examinations of d to maslow's x box including search terms like kiddy porn or child and other evidence seized from his home your honor i'd like to also just raise one other section so we do have evidence in the record that di tomaso did not choose the unmoderated section one available at least with respect to the december twenty third and that's important because that evidence conclusion as the district court of united states for a scammer in the united states versus keith where and had either been found in the district court decision and keith to be a government actor or to be it was in a holding in camera and also in a footnote there and in another letter said listen i don't really understand what happened here and that's why i want to have a hearing so i don't think he really knew the role that n c m e c had played because it wasn't disclosed in the affidavit for probable probable cause was established solely on user complaints from a o l there were out of seven and see the reports two were from users about the same single incident  s you're making an affirmative statement but you putting a question mark the end of it right i don't recall exactly your honor but i'm pretty sure that they were not user complaints well chad thank you thank you thank you both will