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ACLU: Challenging Government Hacking in Criminal Cases, 2017

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CHALLENGING GOVERNMENT
HACKING IN CRIMINAL CASES
March 2017

CHALLENGING GOVERNMENT HACKING
IN CRIMINAL CASES

American Civil Liberties Union
125 Broad Street,
New York, NY 10004

Electronic Frontier Foundation
815 Eddy Street,
San Francisco, CA 94109

© 2017 ACLU Foundation
© 2017 Electronic Frontier Foundation
© 2017 National Association of Criminal Defense Lawyers

Cover Image: Hugh D’Andrade

National Association of
Criminal Defense Lawyers
1660 L St. NW, 12th Floor,
Washington, D.C. 20036

ABOUT THE AUTHORS*
AMERICAN CIVIL LIBERTIES UNION (ACLU)
For nearly 100 years, the ACLU has been our nation’s guardian of liberty, working in
courts, legislatures, and communities to defend and preserve the individual rights and
liberties that the Constitution and the laws of the United States guarantee everyone in
this country.
The ACLU takes up the toughest civil liberties cases and issues to defend all people
from government abuse and overreach, and works to establish new privacy
protections for our digital age of widespread government surveillance.
With more than 2 million members, activists, and supporters, the ACLU is a
nationwide organization that fights tirelessly in all 50 states, Puerto Rico, and
Washington, D.C., for the principle that every individual’s rights must be protected
equally under the law, regardless of race, religion, gender, sexual orientation,
disability, or national origin.

ELECTRONIC FRONTIER FOUNDATION (EFF)
The Electronic Frontier Foundation is the leading nonprofit organization defending
civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free
expression, and innovation through impact litigation, policy analysis, grassroots
activism, and technology development. We work to ensure that rights and freedoms
are enhanced and protected as our use of technology grows.
With roughly 37,000 active donors, EFF represents technology users’ interests in
court cases and broader policy debates, including the debate about law enforcement
“hacking.” EFF has worked to educate criminal defense attorneys and the courts about
the threats to privacy posed by this surveillance technique, including filing amicus
briefs in seven cases arising from the Playpen investigation.

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (NACDL)
The National Association of Criminal Defense Lawyers is the preeminent organization
in the United States advancing the goal of the criminal defense bar to ensure justice
and due process for persons charged with a crime or wrongdoing. NACDL’s core
mission is to: Ensure justice and due process for persons accused of crime … Foster
the integrity, independence and expertise of the criminal defense profession …
Promote the proper and fair administration of criminal justice.
Founded in 1958, NACDL has a rich history of promoting education and reform

through steadfast support of America’s criminal defense bar, amicus curiae advocacy,
and myriad projects designed to safeguard due process rights and promote a rational
and humane criminal justice system. NACDL’s many thousands of direct members —
and 90 state, local and international affiliate organizations totaling up to 40,000
members — include private criminal defense lawyers, public defenders, active U.S.
military defense counsel, and law professors committed to preserving fairness in
America’s criminal justice system. Representing thousands of criminal defense
attorneys who know firsthand the inadequacies of the current system, NACDL is
recognized domestically and internationally for its expertise on criminal justice
policies and best practices.
* Students in the Technology Law and Policy Clinic at NYU Law School, including
David Krone and Charles Low, contributed to this report.

ii

CONTENTS
INTRODUCTION
MALWARE: WHAT IS IT & WHAT CAN IT DO?
TOR AND THE DARK WEB: WHAT ARE THEY & HOW DO THEY RELATE TO LAW
ENFORCEMENT’S USE OF MALWARE?
TYPES OF INFORMATION TARGETED BY MALWARE
EXISTING WATERING HOLE ATTACKS
HOW CAN YOU TELL IF THE GOVERNMENT USED MALWARE IN YOUR CASE?
AVAILABLE DISCOVERY REQUESTS
AVAILABLE LEGAL ARGUMENTS
FOURTH AMENDMENT ARGUMENTS
THE DEPLOYMENT OF A NIT ON A SUSPECT’S COMPUTER IS A SEARCH
SOME COURTS HAVE HELD THAT VISITING A CHILD PORNOGRAPHY SITE SUPPLIES
PROBABLE CAUSE, BUT STRONGER CHALLENGES LIE IN OTHER CONTEXTS
NIT WARRANTS CAN BE CHALLENGED FOR LACKING PARTICULARITY
SPECIFICITY
OVERBREADTH

RULE 41(B) ARGUMENTS
NIT WARRANTS ISSUED BEFORE DECEMBER 1, 2016
NIT WARRANTS ISSUED ON OR AFTER DECEMBER 1, 2016

ARGUMENTS FOR SUPPRESSION
SEEKING AND RELYING UPON A WARRANT THAT EXCEEDS A MAGISTRATE JUDGE’S
JURISDICTION IS IN BAD FAITH
SPECIAL LIMITS ON THE EXCLUSIONARY RULE FOR RULE 41(B) VIOLATIONS MAKE
SUPPRESSION UNLIKELY ABSENT A FOURTH AMENDMENT VIOLATION

DUE PROCESS ARGUMENTS FOR DISMISSAL OF INDICTMENT

CONCLUSION
APPENDIX A: GLOSSARY
APPENDIX B: TABLE OF ORDERS ON MOTIONS TO SUPPRESS
APPENDIX C: SAMPLE BRIEFS AND LETTERS TO COMPEL DISCOVERY
FIRST SAMPLE MOTION AND EXHIBITS
GOVERNMENT’S OPPOSITION TO FIRST SAMPLE MOTION
DEFENDANT’S REPLY FOR FIRST SAMPLE MOTION AND EXHIBIT
DISCOVERY LETTER FOR FIRST SAMPLE MOTION
SECOND SAMPLE MOTION
THIRD SAMPLE MOTION
FOURTH SAMPLE MOTION AND EXHIBITS

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INTRODUCTION

In recent years, the government has increasingly turned to hacking as an investigative
technique. Specifically, the Federal Bureau of Investigation (“FBI”) has begun
deploying malware: software designed to infiltrate and control, disable, or surveil a
computer’s use and activity. The government calls this type of hacking operation a
“Network Investigative Technique,” or NIT.
Law enforcement, and particularly the FBI, has been using malware to investigate
online criminal activity since at least 2002. 1 While the FBI initially limited malware
attacks to individual computers, it has in recent years embraced a form of bulk
hacking that enables small teams of agents to hack thousands of computers in a single
operation, often on the basis of a single warrant issued by a single magistrate judge. 2
The use of this controversial technique is driven in part by the increased availability
and adoption of easy-to-use privacy-enhancing technologies, like Tor and Virtual
Private Network (“VPN”) services, which allow individuals to shield their locations
and identities online, and by the use of encryption, which allows individuals to protect
the contents of their communications. 3 Installing malware can enable the government
to identify targets who use privacy-enabling software to hide their IP addresses, and
thus their location or identity, or to access encrypted communications.
To date, the best known and most frequently litigated form of government bulk
hacking is a so-called “watering hole” operation, in which the government
commandeers a website associated with criminal activity, continues to operate it, and
uses the site to surreptitiously deliver malware to (possibly hundreds or thousands of)
computers that connect to the site. The term derives from the concept of poisoning a
watering hole where certain animals are known to drink. The government can deliver
the malware through a link that a user clicks on, or by programming the malware to
secretly install itself on a computer once a user visits a particular page. Unbeknownst
to the user, the malware then takes partial control of the computer in order to search
it and send identifying information, including the computer’s IP address, back to a law
enforcement server.
To obtain authorization to deploy malware, the FBI uses search warrants issued by
magistrate judges pursuant to Rule 41 of the Federal Rules of Criminal Procedure. 4 In
several watering hole operations, the FBI has remotely searched thousands of
computers located in districts around the country pursuant to a single search
warrant—including, in the most recent known operation, searching more than 8,000
computers in 120 different countries. 5
As of the date of publication, the legality of such government bulk hacking is being
fiercely litigated in criminal cases across the country, giving rise to a quickly
developing area of law. As information about law enforcement hacking has come to
light, a number of federal judges have voiced concern about the legality of this
technique, with some rejecting hacking warrant applications or suppressing evidence
obtained by the FBI through the use of malware.

This guide seeks to educate defense attorneys about these highly intrusive surveillance
techniques and to help them prepare a zealous defense on behalf of their clients
against secretive and potentially unlawful hacking. Such hacking has never been
discussed by Congress, and we in no way endorse government hacking. However,
given that the federal government is deploying malware and a recent amendment to
Rule 41 only makes such deployment easier, it is our goal to ensure that all uses of
malware are subject to meaningful Fourth Amendment analysis so that malware is
installed only when supported by individualized suspicion. Our Fourth Amendment
right to be free from unreasonable searches applies regardless of whether new
technology is involved in effectuating a particular search; however, the law may be
slow to catch up, particularly when the government goes to great lengths to hide
details about its use of new surveillance techniques. 6 In the following sections, we
explain the technologies and terminologies that surround government malware, 7
point out how to recognize the use of government malware in a criminal case, and
outline the most important and potentially effective procedural and constitutional
arguments that might warrant suppression of evidence.
Because, as described below, nearly every challenge to the government’s use of
malware to date has arisen in the context of watering hole attacks on child
pornography sites, this report focuses on that context. 8 As with all new technologies,
however, the government’s use of malware will expand to other contexts and may be
used for increasingly intrusive searches. 9 Therefore, this guide highlights good
precedent and offers arguments to distinguish existing bad law and to help ensure
those decisions are at least limited to the child pornography context.

C HAP TER I

MALWARE: WHAT IS IT & WHAT CAN IT DO?
Generally, the term “malware” refers to software intended to damage a computer
system or to take partial control of its operation. 10 While this report focuses on law
enforcement’s use of malware to hack into computers in order to identify users, the
term can also refer to malicious software used for other goals. In a number of recent
incidents, for example, criminals have used malware known as “ransomware” to hold
individuals’ and organizations’ data hostage and extort payment for its release. 11 In
another case, “Stuxnet,” a piece of malware believed to have been developed jointly by
U.S. and Israeli intelligence, was designed to target and disable the Iranian nuclear
weapons program. 12 Stuxnet then escaped the target system and began to damage
non-target computers, highlighting both the potential reach of malware and how
difficult it can be to control. Similarly, in Germany, the government infamously
deployed “Bundestrojaner” (state Trojan horse), which enabled the government to
“not only siphon away intimate data,” but also provided a technical vulnerability
through which anyone on the Internet could install or activate programs on an
infected device. 13 And, in Mexico, spyware developed by an Israeli surveillance
company was used to send disturbing messages from unknown numbers to targets—
including nutrition advocates who had done nothing more controversial than support
a soda tax—claiming that people close to them had died. 14

2

The FBI relies on malware to collect information that is transmitted by or stored on
anonymous targets’ computers. In 2007, in one of the earliest-known cases of FBI
hacking, the FBI employed a piece of malware known as a Computer Internet Protocol
Address Verifier (“CIPAV”) to identify an anonymous user who had posted online
bomb threats about a high school in Washington State. 15 After news of the FBI’s use of
malware in that investigation spread, FOIA requests revealed that the FBI had been
deploying CIPAVs to search anonymous users’ computers since at least 2002. 16
In the past few years, the FBI has expanded from the tailored deployment of malware
against individual targets to watering hole operations, in which the FBI delivers
malware to people who visit a particular website. The FBI is known to have conducted
watering hole operations on at least three occasions, each targeting users of child
pornography sites—most recently and expansively in a 2015 operation aimed at the
“Playpen” website. 17

TOR A ND THE DAR K WEB: WHAT A RE THEY & HOW DO
THEY RELA TE TO LAW E NFORCEMENT’S USE OF
MALWARE?
In recent reported cases, malware has played a key role in the investigation of sites on
the “Dark Web” and in unmasking users employing anonymity-protecting technology
such as “Tor.” Among other things, Tor is a network that helps to maintain the privacy
and security of a user’s IP address, 18 location, and usage by directing his or her online
traffic through a series of relays. 19 Tor can also maintain the privacy and security of a
webserver’s IP address. Websites that are only accessible to visitors using Tor are
colloquially known as “DarkNet” sites, “onion services,” or “hidden services.”
Collectively, these sites may be referred to as the “Dark Web.” A Tor user who visits a
hidden service cannot learn the real IP address for that website’s server through the
act of making that connection, nor can the website learn the IP address for the user.
Using Tor to browse anonymously or connect to hidden services is relatively
straightforward and does not require a high level of technical sophistication. In fact,
following simple instructions, most Internet users can do it within five minutes. 20
Users need only download a special web browser known as the “Tor bundle” from the
Tor Project, the U.S.-based non-profit that develops Tor. 21 After installation, the Tor
browser automatically configures a Tor network connection every time the user opens
the program. The Tor user can then find unique addresses for DarkNet websites by
searching on the Internet or using DarkNet-specific search engines such as TORCH. 22
Behind the scenes, of course, Tor’s process of establishing an anonymous, encrypted
connection is more complicated. Tor employs a series of volunteer computers or
“relay nodes” to transmit the connection request. 23 When a user sends out a
connection request, the original data is encrypted in such a way that only the last (or
“exit”) relay can decrypt it. That bundle, in turn, is encrypted in such a way that only
the relay right before the exit relay can decrypt it, and so on, in layers, all the way to
the first (or “entry”) relay. This means that the request sent to the entry relay is
bundled in as many layers of encryption as there are relays. And, as the request gets to
each relay, that relay decrypts the only layer it knows how to decrypt. When the
request gets to the exit relay, that relay knows to send the request to the designated
server, which then sends the requested content back through the encrypted chain of

3

Tor relays. As a result—and most importantly—no single server in the Tor network
can trace a user’s path through the network to the requested site. 24
The following graphics depict the process visually:

4

Tor serves as an essential tool for activism and free speech across the world.
Journalists, bloggers, whistleblowers, human rights workers, and other activists have
relied on the Tor network to avoid surveillance and other Internet controls by
potentially repressive regimes. 25 Reporters Without Borders’ 2015 report, “Safety
Guide For Journalists,” for instance, recommended that journalists concerned about
surveillance use a tool where communications are “encrypted and sent over the Tor
network.” 26 In 2010, the State Department announced its support for the
“development of new tools that enable citizens to exercise their rights of free
expression by circumventing politically motivated censorship.” 27
In fact, the Tor technology was originally created by the U.S. Naval Research Lab to
allow naval investigators to hide their activities online. 28 The U.S. government
remains the biggest financial supporter of Tor, and the Tor Project has, in just the past
few years, received millions of dollars in funding from the State Department, the
National Science Foundation, and the Defense Department (“DARPA”). 29
Upon learning of websites associated with criminal activity that are often accessed via
Tor, the FBI has begun requesting warrants to commandeer the sites (generally by
seizing their servers) in order to deliver malware to exploit flaws in the Tor browser. 30
As noted above, the government can deliver the malware through a link that a user
clicks on, or through code that secretly installs itself on a computer once a user visits a
particular webpage. Once installed on an individual’s computer, the malware takes
advantage of a security flaw in the computer to surreptitiously take partial control of
it, search it, and send identifying information back to a law enforcement server. 31

TYPES OF INFORMATION TARGETED BY MA LWAR E
Once malware obtains access to a computer, there are few limits to what it can do. As
described above, malware has been used to collect ransom, scare health advocates,
and attempt to disarm a nuclear weapons program. Even within the realms of
collecting private information and unmasking individuals, the possibilities are
5

essentially limitless. In one recent case, law enforcement sought a warrant authorizing
the NIT malware to collect photographs, account records, and other evidence related
to criminal activities from the target computer. 32 And, as noted above, existing
spyware can take control of the target’s camera to record live footage. As the Supreme
Court recently warned in Riley v. California, modern computing devices are capable
of storing entire warehouses’ worth of information 33—a reality that highlights the
frightening potential of NIT malware.
Most frequently, law enforcement deploys malware in order to identify users who seek
to anonymize themselves online. In recent cases, a single NIT warrant has allowed the
FBI to collect identifying information from thousands of computers, including each
computer’s IP address, operating system, “MAC address” (a unique identifier assigned
to each network interface), and active username (the account under which an
individual user has logged onto the device). 34 Law enforcement then uses this
information to tie a computer to an individual. First, with the help of the Internet
Service Provider in control of the seized IP address, law enforcement uses the seized
IP address to associate online behavior with a specific internet account. Law
enforcement then uses the MAC address to identify a particular device connected to
that account and, by determining which username was logged into that device at a
specific time, law enforcement can finally link online behavior to an individual. Or law
enforcement can determine a device’s approximate latitude and longitude by using
malware to track the device’s use of wireless access points and checking those points
against an external database maintained by private companies. 35 Thus, law
enforcement may be able to determine the physical location of the computer, or to
identify which particular user was likely on the computer at the time of the alleged
criminal activity.
As noted briefly above, in addition to gathering information to identify the user of a
computer, the government can also use NIT malware to collect other content stored
on the hard drive of a target’s computer or to capture user credentials for social media
sites such as Facebook or Google. And the government’s use of malware can spread
even further—from the initially-infected device to a user’s other devices, such as her
smartphone or printer. 36 However, good security practices, such as the prompt
installation of software updates, can make it harder for law enforcement to
successfully deliver malware to remote targets. 37

EXISTING WATERING HOLE A TTAC KS
All of the known FBI watering hole operations have targeted child pornography
websites. These include the “Torpedo” sting investigation in 2012, the “Freedom
Hosting” sting investigation in 2013 (which also targeted TorMail, which is not a child
pornography site), and the “Playpen” sting investigation in 2015. 38 Defendants
continue to challenge information gathered as a result of these three investigations,
and it is possible that your client’s charges may be related to one of these large-scale
watering hole operations, described in turn below.
In November 2012, through the Torpedo operation, the FBI seized three DarkNet sites
that hosted child pornography. 39 Over the next several weeks, the FBI operated the
sites, including Pedoboard, and deployed three court-authorized NITs—one on each
site—to obtain the IP addresses of visitors. 40 Through Torpedo, the FBI collected IP
addresses for at least 25 visitors and took at least 14 criminal defendants to trial. 41

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Each defendant moved to suppress the evidence obtained through the NIT, but a
single magistrate judge denied all of the motions. 42
In the next known bulk hacking operation, the Freedom Hosting sting, the FBI seized
a group of servers in July 2013. These servers hosted various websites on the Dark
Web—some, but not all, of which contained child pornography. 43 Also among the
websites and services was an email service known as TorMail, which was “used by a
range of people, from criminals to dissidents and journalists.” 44 On August 4, 2013,
the homepage of TorMail was replaced with a “down for maintenance” message; some
technically sophisticated users noticed that when they visited the TorMail homepage,
the website attempted to covertly deliver malware to their computers. Security
researchers who subsequently analyzed the code determined that it collected
identifying information about visitors to the site and then transmitted that
information back to a server in Northern Virginia. The FBI later confirmed that it had
deployed malware on Freedom Hosting websites after seizing the Freedom Hosting
servers. The FBI initially sealed the warrant it relied upon for the 2013 operation. In
response to an ACLU push to unseal the relevant case dockets, the FBI finally released
the warrant and application in November 2016—revealing that the FBI had sought to
hack more than 300 specific users across 23 separate websites. 45
In the FBI’s 2015 Playpen sting, part of “Operation Pacifier,” the agency seized control
of a server running a child pornography website referred to as “Website A,” and
covertly operated it from its own servers in Virginia between February 20, 2015 and
March 4, 2015. 46 Court documents state that the site was devoted to child
pornography and was named “Playpen.” 47 The website had more than 158,000
members, and allowed members to upload or view images of their choosing. 48
According to a transcript from one evidentiary hearing, the FBI “obtained over 8,000
IP addresses, and hacked computers in 120 different countries” through the
operation. 49 All of these NIT deployments were authorized by a single warrant issued
by a single magistrate judge, sitting in the Eastern District of Virginia. 50 The
investigation resulted in charges against at least 137 persons. 51 Given the breadth of
the warrant and its deployment, the majority of the cases discussed below arose from
challenges to the Playpen NIT.

C HAP TER II

HOW CAN YOU TELL IF THE GOVERNMENT
USED MALWARE IN YOUR CASE?
Whenever you have a case involving charges arising from illegal online activity, you’ll
want to know the precise facts that gave rise to a probable cause warrant and how the
government located your client. The fastest way to recognize if the government used
malware in your case is to read the warrant application, affidavit, and warrant itself.
In all of the malware operations known to date, the FBI’s use of this technique was
authorized by a search warrant issued pursuant to Rule 41. 52

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The most unequivocal sign that malware has been used is a NIT-specific warrant
section titled “Court Authorized Use of Network Investigative Technique.” An explicit
NIT-based warrant application may describe law enforcement activity that sends
communications or instructions to your client’s computer in order to deliver
identifying data to a government computer. Your client’s computer may be referred to
as a “receiving computer”—meaning one that directly receives the government’s
malware and instructions—or an “activating computer,” meaning one that visits a
particular suspect website and “activates” the malware stored there by the
government. This form of data-sharing between your client’s and the government’s
computers may also be described as “network level messaging.”
But warrants may not be so forthcoming, and may indicate the use of malware in a
subtler fashion. When reviewing search warrants that are turned over to you, look for
references to other warrants. In addition, look out for any unexplained gaps in the
chain of evidence—such as law enforcement’s identification of a target’s IP address or
physical location purportedly based on internet activity that could not actually provide
such information—and for any evidence gathered as a result of “electronic
surveillance,” including any mention of a particular server or website or any
indication that probable cause was based on traffic to or downloads from a particular
website. Because malware operations may involve an ongoing investigation, it’s
common for a website to have a vague identifier in a warrant application, such as
“Website A” or “Bulletin Board A.” NIT-based warrants may also include an explicit
reference to Tor, or a generic descriptor of a service that is designed to facilitate
anonymous online communication. And keep an eye out for any language indicating
that a website, its server, or web-hosting facility has been “seized” or run from a new
server in Virginia or Maryland, were most sites operated and servers seized by the FBI
are located.
The warrant applications in U.S. v. Michaud provide a good example. In that case, the
NIT Warrant cover sheet described the “Place to be Searched” as the computer server
hosting the DarkNet website—which was located at a government facility in that
district. 53 The warrant noted that “the activating [target] computers are those of any
user or administrator who logs into the TARGET WEBSITE by entering a username
and password.” 54

C HAP TER II I

AVAILABLE DISCOVERY REQUESTS
If you believe that malware has been used in your client’s case, you may be entitled to
discovery designed to find out more about the NIT process. A recent case from the
Ninth Circuit, although not specific to online activity or malware, reaffirms the right
of criminal defendants to engage in discovery pertinent to assessing the scope of any
search under the Fourth Amendment. 55 Below is a list of potential discovery requests
under Rule 16, 56 which may reveal facts relevant to the legal challenges outlined
below:

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•

All warrants, warrant applications, and any related documents that were used
to identify [Client’s Name], including affidavits for the seizure of any server
used to deploy the NIT against the target website and the NIT warrant itself.

•

The complete source code for the NIT, including the exploit and payload (this
can give you or an expert valuable information about the scope and process of
the search). 57

•

The amount and prevalence of illegal content hosted by or accessed on the
target website, by both defendant and all other users, ideally as a percentage
of all content on the target website (this information can help you assess
whether probable cause exists for all users who encounter the NIT).

•

The number of visitors to the target website and the number of total visits to
the site [during relevant dates], by both defendant and all other users.

•

The total length of time spent on the target website [during relevant dates]
and the average number of hours spent on the site, by both defendant and all
other users.

•

Any communications on or off the target website between the [relevant
government agency] and (i) defendant and (ii) other users.

•

Any [agency] activity on the website during the [relevant dates], including but
not limited to measures taken to monitor, collect, or block access to certain
content on the target website, and other communications such as private chat
messages.

Four motions to compel discovery, filed in Playpen cases, are included in Appendix C.
These samples can also serve as starting points for drafting.

C HAP TER IV

AVAILABLE LEGAL ARGUMENTS
NIT warrants stretch the limits of the Fourth Amendment and the Due Process
Clause. They also contravene the territorial limits on magistrate jurisdiction set forth
in an earlier version of Rule 41(b), which applies to any warrant issued before
December 1, 2016. 58 Defense attorneys have moved to suppress evidence obtained via
NIT warrants in a number of cases in recent years—most stemming from the Playpen
operation—with varying degrees of success.
The arguments for suppression are explained below. We begin with constitutional
arguments in an attempt to ensure that all uses of malware are subject to meaningful
Fourth Amendment analysis and in recognition of the recent change to Rule 41(b),
which took effect on December 1, 2016, and will make rule-based challenges to
warrants issued after that date more difficult.

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FOUR TH AMENDMENT ARGUMENTS
The need for a warrant in the first place depends, of course, on whether deploying a
NIT on a suspect’s computer is a search; if it is not a search, almost all challenges are
unavailable. 59 Use of malware, unequivocally, is a search. Furthermore, the NIT’s
collection of information is a seizure. While some courts have held that NIT
deployment is not a search, most courts agree that a warrant is indeed required. 60
Once a court determines that a NIT deployment is a search, the following Fourth
Amendment challenges are available: (1) probable cause is lacking; (2) the warrant
lacks specificity; and (3) relatedly, the scope of the warrant is overbroad or the
warrant functions as a “general warrant.” 61 On at least one occasion a magistrate
judge has declined to issue a NIT warrant on Fourth Amendment grounds 62 and, in
four other cases, district judges found that the Playpen NIT warrant violated the
Fourth Amendment—though they ultimately denied suppression based on the goodfaith exception63 or in light of binding circuit precedent. 64 Most recently, a magistrate
judge issued a report and recommendation holding that the Playpen NIT warrant
violated the Fourth Amendment and recommending that the court grant the
defendant’s motion to suppress because the good-faith exception does not apply. 65

THE DEPLOYMENT OF A NIT ON A SUSPECT’S COMPUTER
IS A SEARCH
Most courts addressing the threshold Fourth Amendment question agree that NIT
deployment constitutes a search. Under either the Katz reasonable-expectation-ofprivacy test 66 or the recently-revived physical-trespass test, 67 the deployment of a NIT
on a suspect’s computer is a search.
In deciding whether the Fourth Amendment applies, courts must consider the
expectation of privacy not only in the information seized—here, IP address, MAC
address, and other identifying information—but also in the place searched—here, the
defendant’s computer. 68 The majority of courts rightly agree that people have a
reasonable expectation of privacy in their computers and that NIT deployment
therefore constitutes a search. Several courts have relied on the Supreme Court’s
decision in Riley—which describes cell phones as “minicomputers” that create “a
digital record of nearly every aspect of [users’] lives”—to conclude that “privacy
concerns apply equally and arguably even more strongly to law enforcement's search
of a laptop computer.” 69 Another looked to appellate court holdings that individuals
generally have a reasonable expectation of privacy in the contents of their home
computers. 70 To illustrate the relevance of this determination, one court analogized to
the more traditional context of searches of the home: “If a defendant writes his IP
address on a piece of paper and places it in a drawer in his home, there would be no
question that law enforcement would need a warrant to access that piece of paper—
even accepting that the defendant had no reasonable expectation of privacy in the IP
address itself.” 71 The majority of courts to reach the issue have therefore held that a
NIT deployment is a search. 72
Defendants need only demonstrate a reasonable expectation of privacy in the place to
be searched to trigger Fourth Amendment protections. Nevertheless, and depending
on the reach and operation of the malware, there may also be a colorable argument
that the defendant had a reasonable expectation of privacy in the information seized.
With regard to IP addresses, most appellate courts to address the issue agree that
10

individuals have no reasonable expectation of privacy in their IP addresses because
this metadata is disclosed to third parties during Internet browsing. 73 Most lower
courts have extended this reasoning to IP addresses that are obscured by Tor because
using Tor requires disclosing IP addresses to third-party Tor nodes, 74 though one
Playpen court disagreed. 75 On the other hand, some courts have found that
individuals maintain a reasonable expectation of privacy in other information seized
by NITs, such as a MAC address. 76 In another case, a court considered the search for
the target computer itself, which, as discussed above, involves the collection of
indicators identifying physical location, as a search separate from the “search for
digital information stored on (or generated by) that computer.” 77
A minority of courts has mistakenly concluded that a NIT deployment is not a
search. 78 To reach this conclusion, some courts have simply ignored the significance
of “the place to be searched” and reasoned that the disclosure of an IP address to a
third party ends the inquiry. 79 One court has incorrectly concluded that any subjective
expectation of privacy in a personal computer is unreasonable in light of the risk of
(private) hacking. 80 Another held somewhat incoherently that the intrusion into a
personal computer “does not matter” because “the IP address is not a physical
component of the computer.” 81 This results-driven jurisprudence is incompatible with
well-settled principles of Fourth Amendment law. Such findings also suggest that
including an affidavit or other expert testimony to explain how a NIT collects a
computer’s IP address may help your client.
If a court mistakenly concludes that the Katz test is not satisfied in a NIT warrant
case, NITs may also be considered a search under the recently-revived property-based
theory of Fourth Amendment rights, according to which “physically occup[ying]
private property for the purpose of obtaining information” is a search. 82 A NIT
deployment is a physical invasion of a private computer: the government sends code
to the computer’s memory, causing it to send information back to the government.
The trespass theory is therefore an additional basis for concluding that a NIT
deployment is a search. 83

SOME COURTS HAVE HELD THAT VISITING A CHILD
PORNOGRAPHY SITE SUPPLIES PROBABLE CAUSE, BUT
STRONGER CHALLENGES LIE IN OTHER CONTEXTS
To date, court orders that have analyzed whether probable cause existed to issue a
bulk NIT warrant have all arisen in the child pornography context and have uniformly
concluded that probable cause did exist. 84 In cases involving Playpen, for example,
courts have held that it was highly unlikely that “unintentional users” would “stumble
onto [the site]” because the landing page contained sexually suggestive images of
minors, its contents were almost exclusively child pornography, and it could not be
accessed without jumping through numerous hoops—including using Tor and
registering for the site. 85 As a result, courts have generally held that visiting the target
site suffices to establish probable cause to believe that the individuals whose
computers accessed the site had knowingly viewed or possessed child pornography—
in and of itself a crime. 86
The inference of illegal conduct is weaker, of course, if the website from which a NIT
is deployed is not dedicated exclusively to hosting content that is illegal merely to
view. In the Freedom Hosting operation, for example, it appears that the servers that

11

the government seized and operated hosted a wide array of content unrelated to child
pornography, including TorMail, an anonymous email application that was used by
dissidents and journalists, among others. 87 In light of the multiple purposes of
TorMail, the inference of probable cause from a visit to its homepage is weaker than in
Playpen cases. The probable cause inference is likely to be even weaker in cases
involving offline crimes that cannot be proven by a person’s presence on a given
website. 88 Under such circumstances, a NIT deployment could run afoul of the
bedrock principle that “a person’s mere propinquity to others independently
suspected of criminal activity does not, without more, give rise to probable cause to
search that person.” 89

NIT WARRANTS CAN BE CHALLENGED FOR LACKING
PARTICULARITY
There are two components of the Fourth Amendment particularity requirement:
specificity and breadth. 90 NIT warrants authorize searches that are strikingly broad,
and there are colorable particularity arguments to be raised. Indeed, the magistrate
judge in In re Warrant—a bank-fraud case—declined to approve the NIT warrant on
particularity grounds. 91 And, in the Playpen context, a district judge in Massachusetts
expressed concern about the breadth of the NIT warrant before ultimately declining to
reach the particularity question, 92 while a magistrate judge in Minnesota issued a
report and recommendation holding that the NIT warrant violated the Fourth
Amendment’s particularity clause. 93

SPECIFICITY
A warrant must state with specificity the place to be searched and the persons or
things to be seized. The degree of precision required depends on the amount of
information available to the government at the time of the warrant application;
“[g]eneric classifications in a warrant are acceptable only when a more precise
description is not possible.” 94
In the Playpen cases, the warrant failed to identify any particular user’s device to
search, or any particular place where a searched device would be located. One court
correctly concluded that “the NIT warrant lacks particularity because it is not possible
to identify with any specificity, which computers, out of all of the computers on earth,
might be searched pursuant to this warrant.” 95 Nevertheless, and without carefully
scrutinizing the issue, nearly all courts have thus far determined that a warrant
application describing the “place[s] to be searched” as the computers of users who log
in to the site is constitutionally sufficient. 96 But a colorable argument can be made
that the warrant failed the particularity requirement because the affidavit did not
demonstrate the likelihood that the triggering condition would occur—that is, that the
particular user at issue would log in to Playpen. 97 Considering the Playpen NIT,
numerous courts have also noted that, though the warrant authorized a search upon
log-in, the FBI did not in fact deploy the NIT until a user visited content within the
site, past the homepage. 98
Depending on the circumstances surrounding the use of the NIT and the specificity
provided to describe targets in the affidavit, credible arguments may exist that more
information was available to the government and should have been supplied in the
warrant application. For example, in the most recent FBI operation, because the
12

government was operating the site, the government possessed data on the browsing
habits of individual users of Playpen, such as the amount of time individuals spent on
the site and the number and type of images they viewed. Including this information in
the warrant may have helped the magistrate judge ensure that the computers targeted
were the particular computers that had accessed illegal content.
When the location of a place is precisely what is sought through the search, the
government must still describe the deployment of the NIT, the circumstances that led
agents to wish to install the NIT, and the length of time for which deployment of the
NIT is requested. 99 For example, the Playpen NIT described the NIT’s deployment on
“the server operating the Tor network child pornography website” 100 as identified by
its Tor URL and specified that the NIT was to gather information only from
computers “who log[ged] into the TARGET WEBSITE by entering a username and
password.” 101 The information to be gathered—seven specific items—was also clearly
listed. 102 Most courts have found this to be sufficient, but the court that held that the
Playpen warrant lacked particularity was not satisfied, rightly taking issue with the
fact that the computers to be searched were not identified “until after the search ha[d]
already occurred.” 103
Without even this information in the warrant, courts are likely to be troubled by the
risk of infecting innocent users’ computers—thereby enabling a search beyond the
particular place described in the search warrant. Thus, the magistrate judge in In re
Warrant, who considered an application for a NIT warrant to target a computer that
was allegedly used for bank fraud, found particularity lacking in the application
because it failed to explain how the NIT would be installed and how the government
could ensure that innocent users would not be searched: “The Government’s
application offers nothing but indirect and conclusory assurance that its search
technique will avoid infecting innocent computers or devices. . . . There may well be
sufficient answers to th[is] question[], but the Government’s application does not
supply them.” 104 In future cases, warrants that fail to explain the method of a NIT’s
deployment with more than conclusory assurances about privacy and effectiveness
may be subject to challenge on specificity grounds.

OVERBREADTH
Defendants have also challenged NIT warrants as overly broad. Under the Fourth
Amendment, the search authorized by a warrant may be “no broader than the
probable cause on which it is based.” 105 As a result, any search authorized by a NIT
warrant must be limited to places and things that are supported by probable cause.
As NIT-based operations expand beyond the child pornography context, judges are
likely to be sensitive to the possibility of searching innocent users’ computers
pursuant to an overbroad warrant. For example, in a situation akin to the TorMail
case, where much of the website content was legal, a magistrate judge may agree that
a warrant application to search “any computer that accesses the site” is too broad to
satisfy the Fourth Amendment. Even a site that shows content that is illegal to
purchase but not illegal to view may give judges pause. Defendants identified through
visiting such sites will have to focus on distinguishing the facts of their case from the
child pornography precedent, where the reasoning that visiting a child pornography
site on the DarkWeb is sufficient to establish probable cause is likely stronger.

13

Several defendants have sought to challenge this conclusion even in the child
pornography context by arguing that the NIT warrant—which, in the Playpen
operation, authorized the search of tens of thousands of computers over an unlimited
geographical area—was so broad that it amounted to a general warrant. Courts,
however, have reasoned that the mere fact of visiting a site dedicated to child
pornography establishes probable cause; the NIT was deployed from a child
pornography site; and probable cause therefore extended to all “places to be
searched,” no matter how many there were. 106 However, it is not clear that an
analogous brick-and-mortar warrant would survive judicial scrutiny—for example, it
is not clear that courts would approve of a warrant that sought to search each
individual who entered or left a low-income housing unit where drug dealing was
known to be rampant.
There is a strong argument that a warrant authorizing the search of such a high
number of personal computers—a number that is unknowable ex ante—poses
precisely the threat that the warrant requirement was designed to avoid: “unbridled
discretion [of] executive and administrative officers.” 107 One judge, unfortunately,
rejected this argument without explanation, 108 and another, who also rejected it, was
badly irked by the comparison to general warrants. 109 But another judge, while not
technically reaching the overbreadth question, strongly suggested that the breadth of
the NIT deployed in the Playpen operation was unconstitutional, and was particularly
troubled by the authorization to search computers in unknown locations. 110 Thus,
depending on the judge, the analogy to general warrants may be helpful.
A related argument about breadth may also be available if a NIT is designed to search
or seize a large amount of personal information. The Playpen NIT targeted seven
specific categories of data, but NITs are capable of searching and obtaining any
information a computer may contain—much of which will likely have nothing to do
with the crime in question or the user of the computer who is suspected of committing
the crime. Thus, the magistrate judge in In re Warrant, in finding the requested NIT
deployment unconstitutionally overbroad, was troubled by the fact that a “computer
[can be] used by family or friends uninvolved in the illegal scheme.” 111 The NIT in that
case was programmed to collect substantially more personal information than the
Playpen NIT—including browsing history and the contents of communications 112—and
this likely explains the court’s concern about the lack of privacy safeguards for third
parties. Thus, in cases involving NITs that sweep up more than discrete categories of
data, the lack of safeguards to protect personal information can be a viable basis for
challenging a warrant.
Note also that a specific variant of this sort of challenge may be available when a NIT
warrant seeks to authorize the use of a computer’s built-in camera. The wellestablished tailoring and minimization standards that apply to video surveillance
require, among other things, “a statement [in the warrant] of the steps to be taken to
assure that the surveillance will be minimized to effectuate only the purposes for
which the order is issued.” 113 This requirement will be difficult to satisfy in malware
cases, and was one of the many bases for the court’s denial of a warrant application in
In re Warrant. 114

R ULE 41 (B) ARGUMENTS
Rule 41(b) of the Federal Rules of Criminal Procedure defines the territorial scope of
search warrants that a magistrate judge can issue. Because the Federal Magistrates
14

Act (“FMA”) grants magistrate judges “all powers and duties conferred or imposed . . .
by law or by the Rules of Criminal Procedure,” Rule 41(b) defines the territorial
jurisdiction of magistrate judges. 115
Prior to December 1, 2016, Rule 41(b) provided that “a magistrate judge with
authority in the district . . . has authority to issue a warrant to search for and seize a
person or property located within the district” unless the warrant fell within one of
the exceptions enumerated in Rule 41(b)(2)–(b)(5)), described in detail below. 116 On
December 1, 2016, Rule 41(b) was amended to add a new exemption, Rule 41(b)(6),
which expands a magistrate judge’s territorial reach for searches of “electronic storage
media” if “the district where the media . . . is located has been concealed through
technological means”—that is, it applies directly to NIT warrants.
Rule 41(b)(6) now provides, in full,
[A] magistrate judge with authority in any district where activities related to a
crime may have occurred has authority to issue a warrant to use remote access
to search electronic storage media and to seize or copy electronically stored
information located within or outside that district if
(A) the district where the media or information is located has been concealed
through technological means; or
(B) in an investigation of a violation of [the Computer Fraud and Abuse Act],
the media are protected computers that have been damaged without
authorization and are located in five or more districts. 117
Because the government may still initiate prosecutions against defendants whose
computers were searched subject to a warrant issued before December 1, 2016—
including additional Playpen defendants—this section begins with a discussion of the
most successful arguments to date under the old version of Rule 41(b). 118 The guide
then turns to Rule 41(b) arguments for cases arising from warrants issued on or after
December 1, 2016.

NIT WARRANTS ISSUED BEFORE DECEMBER 1, 2016
The majority of district courts to have addressed the Playpen NIT warrant have held
that it violated Rule 41(b) (and, by implication, § 636(a)(1) of the FMA) by authorizing
searches outside the district in which it was issued, though only five courts have
ordered or recommended suppression on this basis. 119 Courts agree virtually
unanimously that when a NIT is deployed on a suspect’s computer, the search in
question occurs on that computer and therefore within the district in which the
computer is located. In In re Warrant, for example, the court explained that a “search
takes place, not in the airy nothing of cyberspace, but in physical space with a local
habitation and a name”—i.e., at the “location of the Target Computer.” 120 As a result,
for any search warrant issued before December 1, 2016, a search of a computer located
outside the district in which the magistrate judge who issued the warrant sits violates
Rule 41(b)(1) and § 636(a)(1). 121
The exceptions enumerated in Rule 41(b)(2)–(b)(5) do not alter this conclusion. Rule
41(b)(4)—which grants magistrate judges “authority to issue a warrant to install
within the district a tracking device” even if the person or property being tracked
15

leaves the district—is the only one that some courts have relied upon to find that NIT
warrants do not violate Rule 41. Their reasoning is along the lines of: “whenever
someone entered Playpen, he or she made, in computer language, ‘a virtual trip’ via
the Internet to Virginia,” where the NIT was installed. 122 However, most courts
correctly recognize that a computer that is searched never travels to the district from
which the NIT is deployed. As one court put it, “the Court would need to accept a
version of the facts that is more Tomorrowland than truth [for subsection (b)(4) to
apply]. . . . While the [malware] instructions may have resided on the Playpen server
in the Eastern District of Virginia, [the defendant became] subject to the NIT only at
the point when those instructions were downloaded to his computer [in another
district.]” 123 And, in the words of another court, a NIT, in any event, “does not track; it
searches.” 124
Subsections (b)(2), (3), and (5) are even less likely to save a NIT warrant issued for a
district outside of the magistrate judge’s jurisdiction; no court has found that any of
these exemptions apply in NIT cases and the government has abandoned these
arguments on appeal. Subsection (b)(2) grants magistrate judges authority to issue a
warrant for a person or property outside the judge’s district “if the person or property
is located within the district when the warrant is issued.” This exemption does not
apply if, as in the majority of NIT cases to date, the place to be searched—the
defendant’s computer—is never located in that district. 125 Subsection (b)(3) lifts the
territorial limit entirely in cases involving terrorism, as long as “activities related to
the terrorism may have occurred” in the magistrate judge’s district. Subsection (b)(5)
extends the places for which a magistrate judge can issue search warrants to property
located in “a United States territory, possession, or commonwealth,” “a United States
diplomatic or consular mission in a foreign state,” and a residence and any land “ used
by . . . a United States diplomatic or consular mission in a foreign state.” The scope of
these exemptions is well delineated; they have not yet been applied, but could
conceivably apply in future cases involving terrorism or computers outside the
boundaries of the fifty states. 126
Numerous courts have also considered the effect of the December 1, 2016 amendment
on cases based on warrants issued before the rule change. At least five courts have
inferred from the amendment that older warrants that allowed searches of places
outside of the issuing magistrate’s jurisdiction violated the rule because the old rule
did not authorize what the amended rule expressly permits. In Workman, the court
explicitly read the amendment to encompass “an entirely new grant of magistrate
judge authority, rather than a clarification of the scope of Rule b(2) or (4).” 127
Similarly, the Arterbury court found that the amendment reflects the government’s
“aware[ness] of the problem of authorizing NIT warrants under the [then] current
Rules of Criminal Procedure.” 128 And in Torres, the court explained that the existence
of the proposed amendment “bolstered” its finding that the NIT warrant violated the
older version of Rule 41 because it “indicates at a minimum that there is currently
ambiguity as to the state of the law.” 129
On the other hand, the argument has also backfired in multiple cases. In AcevedoLemus, for instance, the court interpreted the amendment as “a strong signal from the
Supreme Court” that Rule 41 should permit the issuance of NIT warrants. 130 Similarly,
in Darby, the court agreed with the government’s claim that the amendment merely
“clarif[ies] the scope of Rule 41(b).” 131 These conclusions are inconsistent with basic
tenets of judicial interpretation: the amendment would serve no purpose if the old
Rule authorized extra-district NIT warrants. Therefore, given the helpful precedent
summarized above, the amendment is worth raising to indicate the limits of what the
16

old rule authorized—though it makes challenges to NIT warrants issued after
December 1, 2016 harder.

NIT WARRANTS ISSUED ON OR AFTER DECEMBER 1, 2016
To date, no cases have considered a NIT warrant issued under the amended Rule.
Going forward, Rule 41(b) arguments are less likely to succeed. However, the breadth
of the amended rule may convince judges that the Fourth Amendment arguments
outlined above are more salient now that magistrate judges are no longer even
territorially limited. To the extent that courts find broad warrants problematic, they
may now be more inclined to reach the constitutional issue.

AR GUMENTS FOR SUPPRE SSION
Any argument for suppression based on violation of Rule 41(b) or the Fourth
Amendment must overcome limitations on the availability of the exclusionary rule.
These include the good-faith exception, which applies to defective warrants regardless
of whether the defect is caused by violation of Rule 41 or the Fourth Amendment, 132
and the exigent circumstances exception. 133 Additional limits restrict the availability
of the exclusionary rule in the Rule 41 context. And these limitations are especially
difficult to surmount in child pornography cases, which form the bulk of precedent on
this issue, due to judicial straining to favor the government in that context. 134
In light of these limits, of the thirty-one Playpen cases finding a violation of Rule 41,
only five courts have ordered or recommended suppression. 135 And of the six courts to
find a constitutional defect in a NIT warrant that was being challenged on a
suppression motion, one court recommended suppression, 136 but three courts held
that suppression was not appropriate because the good-faith exception applied, 137
while another court found itself bound by Seventh Circuit precedent that denied
suppression where a warrant had been issued without jurisdiction. 138 Numerous
courts have similarly suggested that even if there were a constitutional violation,
suppression would be unwarranted. 139

SEEKING AND RELYING UPON A WARRANT THAT EXCEEDS
A MAGISTRATE JUDGE’S JURISDICTION IS IN BAD FAITH
Under Leon 140 and progeny, “disputed evidence will be admitted if it was objectively
reasonable for the officer executing a search warrant to have relied in good-faith on
the judge’s determination that there was probable cause to issue the warrant.” 141 This
“good-faith exception” also applies to reliance on a warrant that is defective because of
a one-off mistake of fact or a clerical error. 142 Some courts have subsequently
interpreted the exception to apply wherever the benefits of deterrence do not
outweigh the costs. 143
Given the breadth of the good-faith exception, four of the five courts to expressly hold
that a NIT warrant—specifically, the Playpen NIT warrant—violated the Fourth
Amendment nevertheless denied motions to suppress evidence based on the goodfaith exception or binding circuit precedent. 144 The majority of courts that found that
the same NIT warrant was issued in violation of Rule 41(b) denied motions to
suppress on the same grounds. However, five courts that found Rule 41(b) violations
17

rejected the government’s good-faith argument and granted (or recommended
granting) the defendants’ motions to suppress.
Levin was the first to do so, holding that “where a warrant is issued by a person
lacking the requisite legal authority”—which is indeed the case when a magistrate
judge violates Rule 41(b) and § 636(a)(1)—the warrant is “void at the outset [and] is
akin to no warrant at all.” 145 Therefore, Levin determined that cases “involving the
application of the good-faith exception to evidence seized pursuant to a warrantless
search are especially instructive” for Rule 41(b) violations. 146 The four other courts
that suppressed (or recommended suppressing) evidence obtained pursuant to the
Playpen NIT warrant similarly found that the good-faith exception cannot apply
where the warrant is void ab initio (or from the start). 147 This argument will not apply
to warrants issued after December 1, 2016, as such warrants will no longer exceed the
jurisdiction of magistrate judges.
Even prior to the rule change—and notwithstanding that most courts agree that the
government sought a warrant that the magistrate judge did not have the authority to
issue at the time—most courts have nevertheless held that suppression is not proper
in the child pornography context. To reach this conclusion, they have relied on the
utilitarian principle—not entirely accepted, but thought to be how the Supreme Court
currently conceives of the good-faith doctrine—that suppression is only warranted
when the benefits of deterrence “outweigh the costs.” 148 Most courts have seen
suppression as a costly penalty in the child-pornography context. 149 If a defendant
learns of and challenges a NIT warrant that was issued before December 1, 2016 for
crimes that do not involve child victims, however, courts may be more likely to follow
Levin and its progeny. 150

SPECIAL LIMITS ON THE EXCLUSIONARY RULE FOR RULE
4 1 ( B ) V I O L A T I O N S M A K E S U P P R ES S I O N U N L I K E L Y
ABSENT A FOURTH AMENDMENT VIOLATION
When considering whether to order suppression for a Rule 41(b) violation, further
limitations apply. Again, because courts are less likely to find that Rule 41(b) has been
violated on bulk-hacking warrants issued after December 1, 2016, the arguments
discussed in this section are likely to apply only to cases arising from warrants issued
before that date.
Courts generally distinguish between Rule-based defects that are of constitutional
magnitude (also often referred to as “substantive” defects) and “all others” (referred to
as “procedural,” “technical,” or “ministerial” defects). 151 Violations of constitutional
magnitude call for suppression; procedural/technical violations do not warrant
suppression unless there is evidence of prejudice to the defendant or that the violation
was intentional. 152
There is a good argument that a warrant issued in excess of a magistrate judge’s
jurisdiction is “substantively” defective. Each of the five courts that granted or
recommended granting suppression on the basis of a Rule 41 violation agreed that the
violation was substantive/constitutional because the magistrate judge exceeded her
jurisdiction in approving the warrant. 153 Four of the courts found that this amounted
to a substantive violation because, unlike the rest of Rule 41, Rule 41(b) “implicates
substantive judicial authority” and therefore cannot be excused as a mere technical

18

defect. 154 Most of these courts did not directly tie the violation to the Fourth
Amendment and failed to mention that, in most circuits, a “substantive” violation of
Rule 41 is one that results in a violation of the defendants’ constitutional rights. 155 But
Croghan and Carlson, the courts that most recently suppressed or recommended
suppressing evidence obtained pursuant to the Playpen NIT warrant, clearly tied this
jurisdictional violation to the Fourth Amendment by highlighting that the Rule
violation effectively resulted in a warrantless search, which was “presumptively
unreasonable” and its fruits were therefore subject to suppression. 156 The Ammons
court agreed that the Rule violation constituted a Fourth Amendment violation
because it resulted in a warrantless search, although it ultimately denied suppression
pursuant to the good-faith exception. 157 The strongest argument for suppression is
therefore one that translates the jurisdictional defect, which some courts may view as
substantive in its own right, into a warrantless search that clearly carries
constitutional weight.
Even if a Rule 41(b) violation is “merely ministerial,” it can still result in suppression
when a defendant is prejudiced. In all but the Third Circuit, discussed in more detail
below, courts agree that a defendant is prejudiced when “the search would not have
occurred if the rule had been followed.” 158 Some courts also extend this definition to
cover searches that “would not have been so abrasive if the rule had been followed.” 159
There is a strong argument that the prejudice prong is satisfied in watering hole cases
involving extra-district NIT deployments prior to December 1, 2016, because a
jurisdictional defect in a warrant that authorizes an extra-district search is
incurable. 160 (Where, by contrast, the government violates Rule 41(f) by, for example,
failing to provide a defendant with a copy of the warrant, the defect is non-prejudicial
because the search could still have occurred if the Rule had been followed. 161) For this
reason, multiple courts have found the prejudice prong satisfied in NIT warrant
cases. 162 Furthermore, most courts to disagree are those that find the defendant had
no reasonable expectation of privacy in the place or items searched—they disagree, in
other words, not because they believe Rule 41(b) could have been complied with, but
because they hold that a warrant was not required in the first place. 163
In the Third Circuit, which employs a narrower test for prejudice, 164 the government’s
conduct must offend fundamental fairness in order for the defendant to have been
prejudiced. 165 A district court in the Eastern District of Pennsylvania found no
prejudice under this test in a Playpen NIT warrant case, reasoning that the agents who
sought the warrant provided substantial amounts of information to the magistrate
judge about the broad territorial scope of the search to be conducted, and that the
Rule 41(b) violation was therefore not caused by any bad faith or obfuscation on the
part of the government. 166 Other district courts in the Third Circuit are likely to reach
the same conclusion.
Suppression is also available for a technical violation “when there is evidence of
intentional and deliberate disregard of a provision in the Rule.” 167 For reasons similar
to those that have led courts to apply the good-faith exception in NIT warrant cases,
suppression for intentional disregard of the Rule has almost never been found
warranted. Numerous defendants have argued that the government’s deliberate
disregard for the old version of Rule 41 is evidenced by its awareness that a rule
change was pending, but this argument has not been well received. 168 Some courts,
moreover, have emphasized that the warrant affidavit in the Playpen case was candid
about the geographic scope of the search to be conducted—including the fact that the
NIT could be deployed on computers “wherever located”—and that even if the warrant
19

was invalid, its defects were therefore not due to any intentional deception by law
enforcement. 169 But one court recommending granting a Playpen motion to suppress
because “the constitutional defect in the execution of the NIT warrant was a creation
of the Agents themselves, impermissibly expanding the scope and conducting
searches outside the area in which the NIT warrant plainly limited searches to.” 170

DUE PR OCESS ARGUMENTS FOR DISMISSA L OF
INDIC TMENT
In watering hole investigations, the government seizes servers known to be hosting
websites dedicated to illegal activity—specifically, child pornography in all known
bulk-hacking investigations to date—and continues to operate those illegal sites for a
period of time in order to deploy NITs. Numerous Playpen defendants have argued
that the indictment against them should be dismissed because the government’s
conduct in continuing to operate the illegal site was “so grossly shocking and so
outrageous” as to violate their due process rights. 171 Dismissal of an indictment for
outrageous government conduct can be warranted when the government becomes
intimately involved in the commission of a crime, 172 or when government conduct
causes injuries to innocent third parties. 173 In either case, the government’s conduct
must reach “a demonstrable level of outrageousness.” 174
Although dismissal for outrageous government conduct is rare—and defining conduct
that is sufficiently extreme is “fraught with problems” 175—the circumstances of child
pornography watering hole investigations are demonstrably outrageous, and should
suffice to make out a colorable claim.
The Second Circuit, in attempting to define the outer limits of the outrageous-conduct
doctrine, has stated that “[i]t would be unthinkable, for example, to permit
government agents to instigate robberies and beatings merely to gather evidence to
convict other members of a gang of hoodlums.” 176 If this example of outrageousness is
so clear, then the constitutional invalidity of the Playpen operation—which caused
“continuing and grievous harm” to thousands of victims 177—is at least as clear. In fact,
when the Second Circuit considered this argument in the child pornography context,
though it ultimately found in favor of the government, the court highlighted that the
child pornography context is different “from the usual undercover operation”—and
that those differences raise “very serious concerns with respect to the rights of . . . the
children Congress sought to protect in enacting the prohibitions on child
pornography.” The Second Circuit explained that, “in contrast to the usual sting
operation, in which the Government sets up a phony drug transaction or another sort
of dummy crime, the government agent in this case encouraged [the defendant] to go
out and commit a real crime, with real victims, just so [the defendant] could later be
arrested and prosecuted.” 178
One court considering a Playpen case similarly found it “easy to conclude that the
Government acted outrageously here,” though it, too, ultimately denied the
defendant’s motion to dismiss. 179 The court explained that the government had
violated 18 U.S.C. § 3509(m), which requires that, in any criminal proceeding, child
pornography “remain in the care, custody, and control of either the Government or
the Court.” 180 And the court highlighted that the government not only “facilitated the
continued availability of . . . a site containing hundreds of child pornographic images
for criminal users around the world” but also “improved [Playpen’s] technical
functionality,” “re-victimized hundreds of children,” and “used the child victims as
20

bait.” Finally, the court noted that the government placed its lawyers at risk of
violating the rules of professional conduct. 181
Even so, the court denied the motion to dismiss for outrageous conduct after applying
the multi-factor test outlined in United States v. Black. 182 Among other reasons for
the denial, the court noted that, while the government provided the opportunity for
the crimes charged, it did not create the crimes. Other decisions have followed a
similar pattern, expressing discomfort 183 with the government’s tactics but ultimately
allowing the cases to proceed upon finding that the defendant’s action was
voluntary. 184
Still others have explicitly found that the government’s actions in this sting operation
were not sufficiently outrageous to justify dismissal—for example, because the
government purportedly “convened regularly to assess the continued benefits of the
investigation,” shut down the site upon deciding the benefits no longer outweighed
the costs, continuously monitored postings to the site, and identified or rescued 49
children from the images Playpen. 185 But even those courts described certain aspects
of the sting as “troubling.” 186
The government itself has repeatedly acknowledged that “young victims are harmed
every time an image is generated, every time it is distributed, and every time it is
viewed.” 187 By that standard, the government repeatedly revictimized thousands of
children over the two weeks that it hosted and operated the Playpen site—not only
because the government enabled continued access to the site, but also because use of
the site grew exponentially while the government operated it. Whereas Playpen had
an average of 11,000 unique weekly visitors before February 20, 2015, 188 that number
grew nearly five-fold, to approximately 50,000, while the government was operating
the site. 189 The roughly 100,000 users who visited Playpen while the government was
operating the site posted approximately 13,000 links to images or video files of child
pornography and clicked on 67,000 unique links to child pornography images and
videos—adding tens of thousands of victims. 190 And the harm resulting from the
Playpen sting was caused not by tangential government involvement in an ongoing
criminal enterprise, but by the government becoming the criminal enterprise.
This argument should apply to the government’s continued operation of any illegal
site following its seizure for NIT deployment: if the government believes that
sufficient probable cause exists to seize the site and deploy bulk malware on visitors,
its continued operation of the site must involve outrageous conduct—namely,
operation of a criminal enterprise.
The Workman decision lends some support to this argument. Though it did not
consider this due process argument, the Workman court rejected the government’s
exigent circumstances argument for similar reasons. After finding that the NIT
deployment amounted to a warrantless search, the court rejected the government’s
argument that the exigency of the ongoing abuse of children by Playpen users justified
the warrantless search because “the government manipulated the exigent
circumstances by seizing the Playpen server and then running Playpen from an FBI
facility for nearly two weeks.” 191 There is good reason to suspect, then, that even
though it is disfavored, the outrageous-conduct doctrine may provide grounds for
dismissal of indictments stemming from watering hole operations.

21

CONCLUSION
Defense attorneys must be vigilant in raising the arguments that have gained
momentum in the child pornography context—specifically, that bulk NIT warrants
issued before December 1, 2016 are void because the issuing magistrate judge
exceeded his or her jurisdiction—and in ensuring that courts refuse to extend the bad
law created due to the specifics of child pornography to any other context. Going
forward, attorneys will likely have to focus on constitutional arguments, but courts
may be more willing to reach such arguments once they recognize that the limiting
principle provided by Rule 41(b)’s territorial definition no longer exists.

ENDNOTES
1

Kevin Poulsen, Visit the Wrong Website, And the FBI Could End Up In Your Computer, Wired,
Aug. 5, 2014, http://www.wired.com/2014/08/operation_torpedo [hereinafter Poulsen, Visit
the Wrong Website].

2

Jessica Conditt, FBI hacked the Dark Web to bust 1,500 pedophiles, Engadget, Jan. 7, 2016,
http://www.engadget.com/2016/01/07/fbi-hacked-the-dark-web-to-bust-1-500-pedophiles.

3

See Ryan De Souza, FBI Randomly Used Malware on TORMail Users While Busting Pedophiles,
Hackread, Jan. 24, 2016, https://www.hackread.com/fbi-hacked-tormail-users.

4

As discussed in detail in Chapter IV, most known malware warrants were issued pursuant to a
version of Rule 41 that has recently been amended in ways that are likely to impact the success
of Rule 41-based challenges to future malware warrants.

5

Joseph Cox, The FBI Hacked Over 8,000 Computers In 120 Countries Based on One Warrant,
Motherboard, Nov. 22, 2016, https://motherboard.vice.com/read/fbi-hacked-over-8000computers-in-120-countries-based-on-one-warrant [hereinafter Cox, FBI Hacked Over 8,000
Computers] (citing Hearing Transcript in United States v. Tippens, No. Cr16-5110RJB (W.D.
Wash. Nov. 1, 2016)).

6

Stephanie Pell and Christopher Soghoian, A Lot More than a Pen Register, and Less than a
Wiretap, 16 Yale J. L. & Tech. 1, 134 (2013) http://digitalcommons.law.yale.edu/cgi/view
content.cgi?article=1102&context=yjolt.

7

You may have already noticed several terms that you are unfamiliar with. Whenever this is the
case, please refer to our glossary, located in Appendix A. For a summary of the NIT warrant
cases cited in this guide, please refer to Appendix B.

8

David Bisson, FBI Used Metasploit Hacking Tool in ‘Operation Torpedo’, Tripwire, Dec. 16,
2014, http://tripwire.me/29efAEC; Joseph Cox, The FBI’s ‘Unprecedented’ Hacking Campaign
Targeted Over a Thousand Computers, Motherboard, Jan. 5, 2016,
http://motherboard.vice.com/read/the-fbis-unprecedented-hacking-campaign-targeted-over-athousand-computers [hereinafter Cox, FBI’s ‘Unprecedented’ Hacking].

22

9

There have already been cases in which law enforcement deployed malware for other purposes,
such as seizing data on a user’s computer or using a webcam to surreptitiously capture pictures
of a target. See In re Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp.
2d 753, 756 (S.D. Tex. 2013).

10

Malware, Dictionary.com, http://www.dictionary.com/browse/malware (last visited Jan. 9,
2017). The term is formally defined by the U.S. National Institute of Standards and Technology
as “a program that is covertly inserted into another program with the intent to destroy data, run
destructive or intrusive programs, or otherwise compromise the confidentiality, integrity, or
availability of the victim’s data, applications, or operating system.” Murugiah Souppaya and
Karen Scarfone, Guide to Malware Incident Prevention and Handling for Desktops and Laptops,
Nat’l Inst. of Standards and Tech. Special Publication (2013),
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-83r1.pdf.

11

Sean Gallagher, Patients diverted to other hospitals after ransomware locks down key software,
Ars Technica, Feb. 17, 2016, http://arstechnica.com/security/2016/02/la-hospital-latestvictim-of-targeted-crypto-ransomware-attack/.

12

Nate Anderson, Confirmed: US and Israel created Stuxnet, lost control of it, Ars Technica, June
1, 2012, http://arstechnica.com/tech-policy/2012/06/confirmed-us-israel-created-stuxnet-lostcontrol-of-it/.

13

Glyn Moody, German police can now use spyware to monitor suspects, Ars Technica, Feb. 25,
2016, https://arstechnica.com/tech-policy/2016/02/german-police-can-now-use-spyingmalware-to-monitor-suspects/.

14

Nicole Perlroth, Spyware’s Odd Targets: Backers of Mexico’s Soda Tax, N.Y. Times, Feb. 11,
2017, https://www.nytimes.com/2017/02/11/technology/hack-mexico-soda-taxadvocates.html.

15

Nate Anderson, FBI uses spyware to bust bomb threat hoaxster, Ars Technica, July 18, 2007,
http://arstechnica.com/security/2007/07/fbi-uses-virus-to-bust-bomb-threat-hoaxster/.

16

Kevin Poulsen, Documents: FBI Spyware Has Been Snaring Extortionists, Hackers For Years,
Wired, April 16, 2009, https://www.wired.com/2009/04/fbi-spyware-pro/.

17

Cyrus Farivar, After FBI briefly ran Tor-hidden child-porn site, investigations went global, Ars
Technica, Jan. 22, 2016, http://arstechnica.com/tech-policy/2016/01/after-fbi-briefly-ran-torhidden-child-porn-site-investigations-went-global/.

18

An IP address is a string of zeros and ones that identifies a machine that is connected to the
Internet, and which is used to route messages to that machine. Unlike a “MAC” address, which,
as described further below, is unique and static, an IP address is not permanent and one
machine could have more than one IP address over its lifetime—or even at a given time. See also
Why Does Your IP Address Change Now and Then?, WhatIsMyIPAddress.com,
http://whatismyipaddress.com/keeps-changing (last visited Jan. 9, 2017).

19

According to the Tor Project, the U.S.-based non-profit that develops Tor, “[t]he entire purpose
of the network is to enable users to communicate privately and securely.” Statement from the
Tor Project re: the Court’s February 23 Order in U.S. v. Farrell, Tor Project (Feb. 24, 2016)
https://blog.torproject.org/blog/statement-tor-project-re-courts-february-23-order-us-vfarrell.

20

Chris Campbell, Access the Dark Web in 5 Minutes or Less, Laissez Faire Today, Mar. 1, 2016,
http://lfb.org/access-the-dark-web-in-5-minutes-or-less/.

21

What is Tor Browser?, Tor Project, https://www.torproject.org/projects/torbrowser.
html.en (last visited Jan. 9, 2017). More advanced users can download a Linux-based operating
system known as “Tails” that has more features. Tails, https://tails.boum.org/ (last visited Jan.
9, 2017).

23

22

Hidden service host names are listed as a string of numbers and letters with the suffix “.onion.”
For instance, “xmh57jrzrnw6insl.onion” is the host name for TORCH, the DarkNet search
engine.

23

In fact, Tor was initially known as “The Onion Router,” alluding to the multiple layers involved
in making any connection request.

24

Tor: Overview, Tor Project, https://www.torproject.org/about/overview.html.en (last visited
Jan. 9, 2017).

25

Users of Tor, Tor Project, https://www.torproject.org/about/torusers.html.en (last visited Jan.
9, 2017).

26

Safety Guide for Journalists, Reporters Without Borders (2015)
https://rsf.org/sites/default/files/guide_journaliste_rsf_2015_en_0.pdf.

27

Hillary Clinton, Sec’y of State, Remarks on Internet Freedom, Jan. 21, 2010,
http://www.state.gov/secretary/20092013clinton/rm/2010/01/135519.htm.

28

Yasha Levine, Almost Everyone Involved in Developing Tor was (or is) Funded by the US
Government, Pando, July 16, 2014, https://pando.com/2014/07/16/tor-spooks/; see also Our
Sponsors, Onion Routing, https://www.onion-router.net/Sponsors.html (last visited Jan. 9,
2017); United States v. Knowles, No. CR 2:15-875-RMG, 2016 WL 6952109, at *2 (D.S.C. Sept.
14, 2016) (“The Department of Defense designed Tor to protect government communications”).

29

Alex Hern, US government increases funding for Tor, giving $1.8m in 2013, Guardian, July 29
2014, https://www.theguardian.com/technology/2014/jul/29/us-government-funding-tor18m-onion-router; see also Tor: Sponsors, Tor Project,
https://www.torproject.org/about/sponsors.html.en (last visited Jan. 9, 2017).

30

Because browsers are complicated programs, they can be exploited in various ways, resulting in
varying degrees of damage—as shown by the examples provided in the beginning of Chapter I.
Even the lowest form of damage, known as a “minor sandbox break,” can reveal a device’s IP
address. A minor sandbox break occurs when malware convinces a browser to go outside of its
usual, contained environment. For example, such malware can pull information—including a
device’s IP address—by forcing the device to connect through the device’s non-Tor connection
when, if functioning properly, the browser would rely on Tor. The specific way in which the
malware forces the browser to malfunction is called an “exploit,” while the directions regarding
what the malware wants the browser to do is called a “payload.”

31

See, e.g., Knowles, 2016 WL 6952109, at *4–5 (D.S.C. Sept. 14, 2016); United States v. Cottom,
No. 8:13CR108, 2015 WL 9308226, at *2 (D. Neb. Dec. 22, 2015).

32

In re Warrant, 958 F. Supp. 2d at 755–56.

33

Riley v. California, 134 S. Ct. 2473, 2489 (2014).

34

See, e.g., United States v. Michaud, No. 3:15-CR-05351-RJB, 2016 WL 337263, at *2 (W.D.
Wash. Jan. 28, 2016).

35

See In re Warrant, 958 F. Supp. 2d at 756. For an example of how this is done, check out
Google’s primer on Geolocation. The Google Maps Geolocation API, Google,
https://developers.google.com/maps/documentation/geolocation/intro#overview (last visited
Jan. 9, 2017).

36

Even for the FBI, hacking into a user’s computer is an expensive and unreliable way of obtaining
the user’s data. See Jenna McLaughlin, The Big Secret That Makes the FBI’s Anti-Encryption
Campaign A Big Lie, The Intercept, Sep. 28, 2015,
https://theintercept.com/2015/09/28/hacking (“compared to say the ‘installation of global
wiretapping capabilities in the infrastructure,’ hacking is ‘significantly more difficult—more
labor intensive, more expensive, and more logistically complex’—which makes it harder to

24

conduct ‘against all members of a large population.’”) (quoting Steven M. Bellovin et al., Lawful
Hacking: Using Existing Vulnerabilities for Wiretapping on the Internet, 12 NW. J. Tech. &
Intell. Prop. 1, 64 (2014)).
37

While good security practices cannot protect users against zero-day exploits, government
malware attacks often exploit older vulnerabilities that can be avoided through software
updates. In addition, Tor recently released a new beta version that automatically prompts users
to install any updates to Tor Messenger or Browser, making such updates even easier for the
user. See Tor Messenger 0.3.0b1 is released, Tor Project (Nov. 22, 2016)
https://blog.torproject.org/blog/tor-messenger-030b1-released.

38

This guide summarizes the majority of rulings on motions to suppress and motions to dismiss
that have arisen from the Playpen sting through March 28, 2017, but the guide is not
comprehensive and may not include all such court orders.

39

Poulsen, Visit the Wrong Website, supra note 1.

40

Id.; see also United States v. Laurita, 8:13CR107, 2016 WL 4179365, at *3 (D. Neb. Aug. 5,
2016).

41

Poulsen, Visit the Wrong Website, supra note 1.

42

Laurita, 2016 WL 4179365, at *6; Cottom, 2015 WL 9308226, at *8; United States v. Reibert,
No. 13 Cr 107, 2015 WL 366716, at *7 (D. Neb. Jan. 27, 2015); United States v. Pierce, No. 13 Cr
106–108, 2014 WL 5173035, at *6 (D. Neb. Oct. 14, 2014).

43

Kevin Poulsen, FBI Admits It Controlled Tor Servers Behind Mass Malware Attack, Wired, Sept.
13, 2013, https://www.wired.com/2013/09/freedom-hosting-fbi [hereinafter Poulsen, FBI
Admits].

44

Ellen Nakashima, This is how the government is catching people who use child porn sites, Wash.
Post, Jan. 21, 2016, http://wpo.st/_lRh1.

45

Joseph Cox, Unsealed Court Docs Show FBI Used Malware Like ‘A Grenade’, Motherboard, Nov.
7, 2016, http://motherboard.vice.com/read/unsealed-court-docs-show-fbi-used-malware-likea-grenade; see also In re Sealed Docket Sheet Associated with Malware Warrant Issued on July
22, 2013, 1:16-cv-03029-JKB (D. Md.).

46

Knowles, 2016 WL 6952109, at *5.

47

Cox, FBI’s ‘Unprecedented’ Hacking, supra note 8.

48

See United States v. Matish, 193 F. Supp. 3d 585, 594 (E.D. Va. 2016).

49

Cox, FBI Hacked Over 8,000 Computers, supra note 5.

50

See, e.g., United States v. Levin, 186 F. Supp. 3d 26, 30 (D. Mass. 2016).

51

Knowles, 2016 WL 6952109, at *5.

52

See, e.g., Proposed Exhibit List Exhibit 101, United States v. Cottom, No. 13-cr-108 (D. Neb.
April 16, 2014), ECF No. 122-1; Application and Affidavit for Search Warrant, United States v.
Network Investigative Technique, No. 12-sw-5685 (D. Col. October 9, 2012), ECF No. 1;
Application for Search Warrant, United States v. Myspace account “Timberlinebombinfo,” No.
07-mj-5114 (W.D. Wash. June 12, 2007), ECF No. 1.

53

Michaud, 2016 WL 337263, at *2.

54

Id.

25

55

United States v. Soto–Zuniga, 837 F.3d 992, 1001 (9th Cir. 2016) (“our post-Armstrong case law
within the Ninth Circuit indicates that Rule 16(a)(1)(E) permits discovery related to the
constitutionality of a search or seizure.”).

56

Rule 16 of the Federal Rules of Criminal Procedure governs discovery requests.

57

Seeking the NIT’s source code can result in suppression of all fruits from the NIT warrant and
dismissal of the entire case. In Michaud, for example, the defendant sought the source code and,
after the government refused to turn it over, the defendant successfully moved to compel
disclosure. The government refused to comply, leading the court to suppress “evidence of the
NIT, the search warrant issued based on the NIT, and the fruits of that warrant.” Order Denying
Dismissal and Excluding Evidence, United States v. Michaud, No. 3:15-cr-5351-RJB-1 (W.D.
Wash. Jan. 22, 2016), ECF No. 212. (A similar argument led the same judge to dismiss several
counts in Tippens. See Order on Government’s Motion Seeking Clarification of This Court’s
Order Dismissing Counts 1 and 3 of the Superseding Indictment, United States v. Tippens, No.
CR16-5110 RJB (W.D. Wash. Mar. 16, 2017), ECF No. 180.) In Michaud, the government then
moved for, and the court granted, dismissal without prejudice because “[t]he suppression order
. . . has deprived the government of the evidence needed to establish Defendant[‘s] guilt” and
because “the government remains unwilling to disclose certain discovery related to the FBI’s
deployment of [the Playpen NIT].” Government’s Unopposed Motion to Dismiss Indictment
Without Prejudice, United States v. Michaud, No. 3:15-cr-5351-RJB-1 (W.D. Wash. Mar. 3,
2017), ECF No. 227.
One persuasive argument for the defendant’s need to access the source code is that the
defendant cannot assess the reasonableness of the warrant otherwise. On the other hand, the
government has also successfully battled motions to compel disclosure of the full source code.
See Matish, 193 F. Supp. 3d at 601; Memorandum Opinion and Order Denying First Motion to
Suppress, Second Motion to Suppress, and First Motion to Compel at 21–24, United States v.
McLamb, No. 2:16cr92 (E.D. Va. Nov. 28, 2016), ECF No. 41 [hereinafter McLamb Order]. And
in at least one case where the government failed to even preserve the source code, the court
nevertheless denied a motion to suppress the information the NIT gathered. Cottom, 2015 WL
9308226, at *8.

58

This guide focuses on federal law, but other arguments may be available under state law.

59

See, e.g., United States v. Darby, 190 F. Supp. 3d 529, 527–28 (E.D. Va. 2016) (“If the use of the
NIT was not a search, the Fourth Amendment was not implicated, no warrant was required, and
any violation of Rule 41(b) [was] irrelevant.”).

60

See, e.g., United States v. Workman, -- F. Supp. 3d ---, 2016 WL 5791209, at *6 (D. Co. Sept. 6,
2016) (a search); United States v. Adams, No. 6:16-cr-11-Orl-40GJK, 2016 WL 4212079, at *4
(M.D. Fla. Aug. 10, 2016) (same). But see Matish, 193 F. Supp. 3d at 614–22 (not a search).

61

If law enforcement collects information beyond that which is described in the warrant—login
details for Gmail or Facebook, for example—it may also be possible to argue that the search
exceeded the scope of the warrant.

62

See In re Warrant, 958 F. Supp. 2d at 758–61.

63

United States v. Scarbrough, No. 3:16-CR-035, 2016 WL 5900152, at *1 (E.D. Tenn. Oct. 11,
2016); United States v. Broy, -- F. Supp. 3d ---, 2016 WL 5172853, at *8 (C.D. Ill. Sept. 21, 2016);
United States v. Ammons, -- F. Supp. 3d ---, 2016 WL 4926438, at *8–9 (W.D. Ky. Sep. 14,
2016).

64

United States v. Owens, No. 16-CR-38-JPS, 2016 WL 7053195, at *7 (E.D. Wis. Dec. 5, 2016).

65

Report and Recommendation at 23–30, United States v. Carlson, No. 0:16-cr-00317-JRT-FLN
(D. Minn. Mar. 23, 2017), ECF No. 44 [hereinafter Carlson R&R].

66

See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

26

67

See United States v. Jones, 565 U.S. 400, 404–12 (2012); see also, e.g., United States v.
Acevedo-Lemus, No. SACR 15-00137-CJC, 2016 WL 4208436, at *4–6 (C.D. Cal. Aug. 8, 2016)
(ignoring the trespass test).

68

See United States v. Dzwonczyk, No. 4:15-CR-3134, 2016 WL 7428390, at *10 (D. Neb. Dec. 23,
2016) (“[T]he Fourth Amendment inquiry requires an analysis not only of the information
obtained, but more fundamentally, the means of obtaining it. To this end, and as applied to the
facts of this case, the question is two-fold: (1) whether the defendant had a reasonable
expectation of privacy in his IP address, and (2) whether he had a reasonable expectation of
privacy in the location where the IP was ultimately discovered—that is, his home computer.”);
Broy, 2016 WL 5172853, at *4 (“Whether [defendant] had a reasonable expectation of privacy in
his computer and its contents is equally as important as whether he had one in his IP address.”).

69

United States v. Hammond, No. 16-CR-00102-JD-1, 2016 WL 7157762, at *2 (N.D. Cal. Dec. 8,
2016) (citing Riley, 134 S. Ct. at 2489–90); see also United States v. Kahler, No. 16-cr-20551,
2017 WL 586707, at *6–7 (E.D. Mich. Feb. 14, 2017) (additionally noting that “Internet use
pervades modern life”).

70

Knowles, 2016 WL 6952109, at *8 (citing string of appellate court decisions holding that
“[i]ndividuals generally have a reasonable expectation of privacy in the contents of their home
computers”).

71

United States v. Croghan, -- F. Supp. 3d ---, 2016 WL 4992105, at *7 (S.D. Iowa Sept. 19, 2016);
see also Adams, 2016 WL 4212079, at *4 (“For example, a defendant has an expectation of
privacy in his garage, even if that defendant lacks an expectation of privacy in the stolen vehicle
parked in the garage.”).

72

See, e.g., United States v. Anzalone, -- F. Supp. 3d ---, 2016 WL 5339723, at *6 (D. Mass. Sept.
22, 2016) [hereinafter Anzalone I]; Croghan, 2016 WL 4992105, at *7; Ammons, 2016 WL
4926438, at *4; United States v. Torres, No. 5:16-CR-285-DAE, 2016 WL 4821223, at *3 (W.D.
Tex. Sept. 9, 2016); Workman, 2016 WL 5791209, at * 6; Adams, 2016 WL 4212079, at *4;
Darby, 190 F. Supp. 3d at 529–30, at *6; Report and Recommendation at 23, United States v.
Arterbury, No. 4:15-cr-00182-JHP (D. Okla. Apr. 25, 2016), ECF No. 42 [hereinafter Arterbury
R&R]; see also Order Affirming and Adopting the Report and Recommendation of the United
States Magistrate Judge at 1, United States v. Arterbury, No. 4:15-cr-00182-JHP (D. Okla. May
12, 2016), ECF No. 47.

73

See, e.g., United States v. Christie, 624 F.3d 558, 573–74 (3d Cir. 2010); United States v.
Forrester, 512 F.3d 500, 510 (9th Cir. 2007).

74

See Matish, 193 F. Supp. 3d at 615 (“Even an Internet user who employs the Tor network in an
attempt to mask his or her IP address lacks a reasonable expectation of privacy in his or her IP
address.”); United States v. Farrell, No. CR15-029 RAJ, 2016 WL 705197, at *2 (W.D. Wash.
Feb. 23, 2016) (Tor users “must disclose information, including their IP addresses, to unknown
individuals running Tor nodes.”).

75

Kahler, 2017 WL 586707, at *7 (“If a user who has taken special precautions to hide his IP
address does not suffer a Fourth Amendment violation when a law enforcement officer compels
his computer to disclose the IP address, the operating system, the operating system username,
and other identifying information, then it is difficult to imagine any kind of online activity which
is protected by the Fourth Amendment.”).

76

Knowles, 2016 WL 6952109, at *8; see also United States v. Brooks, No. 16-CR-6028L, 2016 WL
7409852, at *12 (W.D.N.Y. Dec. 22, 2016) (declining to reach Fourth Amendment question until
additional briefing and evidence were provided regarding expectation of privacy, including
whether, “[s]imilar to the IP address[,] . . . the other data that was obtained through use of the
NIT [is] the type of data that is typically conveyed by computer users to third parties or
accessible by the public”).

77

In re Warrant, 958 F. Supp. 2d at 757.

27

78

See, e.g., United States v. Henderson, No. 15-cr-00565-WHO-1, 2016 WL 4549108, at *5 (N.D.
Cal. Sept. 1, 2016); Acevedo-Lemus, 2016 WL 4208436, at *4–6; Matish, 193 F. Supp. 3d at
614–22; United States v. Werdene, 188 F. Supp. 3d 431, 443–46 (E.D. Pa. 2016).

79

See, e.g., Henderson, 2016 WL 4549108, at *5; Order and Reasons at 17–19, United States v.
Rivera, No. 2:15-cr-00266-CJB-KWR (E.D. La. July 20, 2016), ECF No. 69 [hereinafter Rivera
Order]; Werdene, 188 F. Supp. 3d 431 at 444–45.

80

See Matish, 193 F. Supp. 3d at 619 (“[I]n today’s digital world, it appears to be a virtual certainty
that computers accessing the Internet can—and eventually will—be hacked.”).

81

Acevedo-Lemus, 2016 WL 4208436, at *4–5; see also Matish, 193 F. Supp. 3d at 617 (“As the
Court understands it, Defendant’s IP address was not located on his computer . . . [it] was
revealed in transit . . .”).

82

Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam) (quoting Jones, 565 U.S. at
404).

83

See, e.g., Brooks, 2016 WL 7409852, at *11 (directing parties to file supplemental briefs
“addressing whether deployment of the NIT constituted a trespass within the meaning of the
Fourth Amendment”).

84

See United States v. Eure, No. 2:16cr43, 2016 WL 4059663, at *7 (E.D. Va. July 28, 2016);
Matish, 193 F. Supp. 3d at 603; Darby, 190 F. Supp. 3d at 530–33; United States v. Epich, No.
15-CR-163-PP, 2016 WL 953269, at *1–2 (E.D. Wis. Mar. 14, 2016); Michaud, 2016 WL 337263,
at *8.

85

Epich, 2016 WL 953269, at *1; see also Darby, 190 F. Supp. 3d at 532 (“Defendant fails to
explain why someone would go to the trouble of entering the Tor network, locating Playpen,
registering for the site, and then logging into the site if they were not looking for illegal
content.”). But see Kahler, 2017 WL 586707, at *6 (“Although the individuals accessing Playpen
to view child pornography were using the Tor software for heinous purposes, the software could
also be used for legitimate purposes . . . a desire for online anonymity is neither unreasonable
nor suspicious.”).

86

A particularly unfruitful variation of the probable cause challenge is that the triggering event
specified in the NIT warrant never occurred. NIT warrants are anticipatory warrants in that they
prospectively authorize searches when visitors arrive at the webpage from which the NIT is
launched. See Matish, 193 F. Supp. 3d at 609; see also United States v. Grubbs, 547 U.S. 90, 94
(2006) (“An anticipatory warrant is a warrant based upon an affidavit showing probable cause
that at some future time (but not presently) certain evidence of crime will be located at a
specified place.”) (quotation marks and citation omitted). Anticipatory search warrants are not
categorically unconstitutional, but they do generally assume that some condition will occur
before the search is authorized. See Grubbs, 547 U.S. at 94–97.
Multiple Playpen defendants have argued that the triggering condition in the NIT warrant was a
visit to the Playpen homepage, and that this event—a prerequisite for probable cause—never
occurred because Playpen changed its homepage after the warrant affidavit was executed and
before the defendants visited it. See, e.g., United States v. Deichert, No. 5:16-CR-201-FL-1, 2017
WL 398370, at *5 (E.D.N.C. Jan. 28, 2017); Eure, 2016 WL 4059663, at *6; Matish, 193 F. Supp.
3d at 610; Darby, 190 F. Supp. 3d at 534. This claim has been rejected on the ground that the
change to Playpen’s homepage was de minimis and therefore did not obviate the existence of
probable cause: the new homepage contained a different image, but that image was suggestive of
child pornography content. See Eure, 2016 WL 4059663, at *7 (rejecting the anticipatory
warrant argument); Matish, 193 F. Supp. 3d at 609–10 (same); Darby, 190 F. Supp. 3d at 534
(same). Note also that some Playpen defendants have sought a Franks hearing on whether the
inaccuracies in the warrant affidavit regarding the Playpen homepage were made knowingly and
intentionally, and that this claim has also been uniformly rejected on the ground that the
homepage change was immaterial. See Eure, 2016 WL 4059663, at *7; Matish, 193 F. Supp. 3d
at 604–07; Darby, 190 F. Supp. 3d at 533–34.

87

See Nakashima, supra note 44; Poulsen, FBI Admits, supra note 43.
28

88

In the past, NITs have been used in cases involving bank fraud and bomb threats. See In re
Warrant, 958 F. Supp. 2d at 753; Kevin Poulsen, FBI’s Secret Spyware Tracks Down Teen Who
Made Bomb Threats, Wired, July 18, 2007, http://www.wired.com/2007/07/fbi-spyware. It
does not appear that any such case has yet addressed the question of whether there was
probable cause supporting the NIT warrant in that context.

89

Ybarra v. Illinois, 444 U.S. 85, 91 (1979); see also United States v. Coreas, 419 F.3d 151, 156 (2d
Cir. 2005) (holding that under Ybarra, the act of logging on to a multi-purpose website is not
enough to establish probable cause); cf. Dancy v. McGinley, 843 F.3d 93, 109 (2d Cir. 2016)
(“[M]ere presence near someone who somewhat matches a vague description is not a reasonable
basis for suspicion.”).

90

See, e.g., Michaud, 2016 WL 337263, at *4.

91

In re Warrant, 958 F. Supp. 2d at 758–59.

92

Levin, 186 F. Supp. 3d at 44.

93

Report and Recommendation at 23–26, United States v. Carlson, No. 0:16-cr-00317-JRT-FLN
(D. Minn. Mar. 23, 2017), ECF No. 44 [hereinafter Carlson R&R].

94

United States v. Cardwell, 680 F.2d 75, 78 (9th Cir. 1982) (citation omitted).

95

Carlson R&R, supra note 93, at 23.

96

Matish, 193 F. Supp. 3d at 608–09; Epich, 2016 WL 953269, at *2; Opinion & Order at 18,
United States v. Stamper, No. 1:15cr109 (S.D. Oh. Feb. 19, 2016), ECF No. 48 [hereinafter
Stamper Order]; Michaud, 2016 WL 337263, at *4–5.

97

See Carlson R&R, supra note 93, at 26 (“This Court is not aware of any case where a court has
permitted the actual identification of the place to be searched to depend upon the occurrence of
an anticipated event that has not yet occurred.”); see also Grubbs, 547 U.S. at 95–96 (“[W]hen
an anticipatory warrant is issued, the fact that the contraband is not presently located at the
place described in the warrant is immaterial, so long as there is probable cause to believe that it
will be there when the search warrant is executed.” (emphasis added) (internal citation
omitted)).

98

See, e.g., Knowles, 2016 WL 6952109, at *4.

99

Id. at *12 (citing United States v. Karo, 468 U.S. 705, 718 (1984)). This rationale may also be
used to argue that disclosure of the NIT’s source code is necessary to determine whether or not
the NIT warrant satisfies the Fourth Amendment.

100

Hammond, 2016 WL 7157762, at *3.This description is itself somewhat misleading as it suggests
that the searches would be carried out in the Eastern District of Virginia (i.e., where the server
was located). As discussed in detail below, the searches in fact occurred on the target computers.

101

See id. at *3.

102

Id. at *3.

103

Carlson R&R, supra note 93, at 24–26.

104

In re Warrant, 958 F. Supp. 2d at 759.

105

United States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990) (citation omitted).

106

California v. Acevedo, 500 U.S. 565, 580 (1991); see also Matish, 193 F. Supp. 3d at 608; Darby,
190 F. Supp. 3d at 533; Michaud, 2016 WL 337263, at *5.

107

Marshall v. Barlow’s Inc., 436 U.S. 307, 323 (1978).
29

108

Matish, 193 F. Supp. 3d at 607–09.

109

Darby, 190 F. Supp. 3d at 533.

110

Levin, 186 F. Supp. 3d at 44, 44 n.29; see also Carlson R&R, supra note 93, at 6–7.

111

In re Warrant, 958 F. Supp. 2d at 759.

112

Id. at 755–56.

113

Id. at 760 (citing United States v. Cuevas-Sanchez, 821 F.2d 248, 252 (5th Cir. 1987).

114

Id at 759–60.

115

28 U.S.C. § 636(a)(1).

116

Fed. R. Crim. P. 41(b) (emphasis added).

117

Fed. R. Crim. P. 41(b)(6) (emphasis added).

118

For example, Hammond, a Playpen case, was decided on December 8, 2016—a week after the
new rule went into effect—but applied the old version given that the relevant warrant was issued
before December 1, 2016. See also Dzwonczyk, 2016 WL 7428390, at *7–8 (decided December
23, 2016).

119

Five courts have ruled that the magistrate who issued the Playpen NIT warrant lacked
jurisdiction to do so, and that suppression of evidence is therefore required. Carlson R&R, supra
note 93, at 11–22; Croghan, 2016 WL 4992105, at *8; Workman, 2016 WL 5791209, at *10;
Arterbury R&R, supra note 72, at 27–28; Levin, 186 F. Supp. 3d at 44.
Another twenty-six decisions considering the Playpen NIT warrant have ruled that, although the
warrant was not properly issued pursuant to Rule 41, suppression is unwarranted. United States
v. Pawlak, No. 3:16-CR-306-D(1), 2017 WL 661371, at *7 (N.D. Tex. Feb. 17, 2017); United States
v. Perdue, No. 3:16-CR-305-D(1), 2017 WL 661378, at *5 (N.D. Tex. Feb. 17, 2017); Kahler, 2017
WL 586707, at *6; Deichert, 2017 WL 398370, at *10; Memorandum and Order, United States v.
Tran, No. 1:16-cr-10010-PBS (D. Mass. Dec. 23, 2016) [hereinafter Tran Order], ECF 71 No. 71;
Dzwonczyk, 2016 WL 7428390, at *14; United States v. Vortman, No. 16-cr-00210-TEH-1, 2016
WL 7324987, at *13 (N.D. Cal. Dec. 16, 2016); Owens, 2016 WL 7053195, at *8; Order on
Defendants’ Motion to Dismiss Indictment, Defendants’ Motion to Suppress Evidence,
Defendants’ Motion to Exclude Evidence, and Third Order on Defendants’ Motion to Compel
Discovery at 16, United States v. Tippens, 3:16-cr-05110-RJB (W.D. Wash. Nov. 30, 216), ECF
No. 106 [hereinafter Tippens Order]; Hammond, 2016 WL 7157762, at *5; United States v.
Duncan, No. 3:15-cr-00414-JO, 2016 WL 7131475, at *3 (D. Or. Dec. 6, 2016); United States v.
Stepus, No. 15-30028-MGM, 2016 WL 6518427, at *2 (D. Mass. Oct. 28, 2016); Memorandum
of Opinion and Order at 11–13, United States v. Libbey-Tipton, No. 1:16-cr-00236-PAG (N.D.
Oh. Oct. 19, 2016), ECF No. 19 [hereinafter Libbey-Tipton Order]; Scarbrough, 2016 WL
5900152, at *1–2; United States v. Allain, -- F. Supp. ---, 2016 WL 5660452, at *11–12 (D. Mass.
Sept. 29, 2016); Anzalone I, 2016 WL 5339723, at *11; Broy, 2016 WL 5172853, at *9; Ammons,
2016 WL 4926438, at *8–10; Knowles, 2016 WL 6952109, at *10–18; Torres, 2016 WL 4821223,
at *7; Henderson, 2016 WL 4549108, at *5–6; Adams, 2016 WL 4212079, at *8; Rivera Order,
supra note 79, at 16–23; Werdene, 188 F. Supp. 3d at 452–53; Stamper Order, supra note 96, at
21-23; Michaud, 2016 WL 337263, at *7.
Finally, twelve decisions have ruled that the Playpen NIT warrant was properly issued under
Rule 41 because it was authorized as a tracking device pursuant to Rule 41(b)(4). These courts
have denied motions to suppress on this basis. See United States v. Austin, No. 3:16-CR-00068,
2017 WL 496374, at *4 (M.D. Tenn. Feb. 2, 2017); United States v. Jones, No. 3:16-CR-026,
2017 WL 511883, at *4 (S.D. Ohio Feb. 2, 2017); United States v. Sullivan, No. 1:16-CR-270,
2017 WL 201332, at *6 (N.D. Ohio Jan. 18, 2017); McLamb Order, supra note 57, at 18; United
States v. Lough, -- F. Supp. 3d ---, 2016 WL 6834003, at *5 (N.D.W. Va. Nov. 18, 2016); United
States v. Johnson, No. 15-00340-01-CR-W-GAF, 2016 WL 6136586, at *6–7 (W.D. Mo. Oct. 20,

30

2016); Opinion and Order Denying Sealed Motion at 15, United States v. Smith, 4:15-cr-00467
(S.D. Tex. Sept. 28, 2016), ECF No. 41 [hereinafter Smith Order]; United States v. Jean, -- F.
Supp. 3d ---, 2016 WL 4771096, at *16–17 (W.D. Ark. Sept. 13, 2016); Eure, 2016 WL 4059663
at *4 (incorporating Darby, authored by same judge); Matish, 193 F. Supp. 3d at 613; Darby, 190
F. Supp. 3d at 536–38; Epich, 2016 WL 953269, at *2. See also United States v. Kienast, No. 16CR-103, 2016 WL 6683481, at *4 (E.D. Wis. Nov. 14, 2016) (would be reasonable to find that the
warrant was valid under Rule 41(b)(4) and suppression is not warranted regardless); Laurita,
2016 WL 4179365, at *6 (same for Torpedo operation).
120

In re Warrant, 958 F. Supp. 2d at 757. On at least one occasion, the government argued that the
search in question occurred on the servers hosting sites visited by the suspect’s computer, but
this argument was unsuccessful because, as the court explained, it is “not the server itself from
which the relevant information [i]s sought” in a NIT case, but rather the suspect’s computer. See
Levin, 186 F. Supp. 3d at 33.

121

Levin, 186 F. Supp. 3d at 33–34. It should also be noted that at least one judge has questioned
whether a defendant can challenge a NIT warrant in a watering hole case when his computer
just so happened to be located in the district from which the warrant issued. See Matish, 193 F.
Supp. 3d at 613 (finding no violation but then noting that, in any event, “as far as this case is
concerned, all relevant events occurred in Virginia [where the warrant issued]”). Other Playpen
cases arising in the district from which the Playpen NIT warrant was issued found no Rule 41(b)
violation on other grounds, see Eure, 2016 WL 4059663, at *4; Darby, 190 F. Supp. 3d at 536–
37, without even mentioning the special issue identified in Matish. Ultimately, moreover, the
fact that a watering hole warrant requires a magistrate judge to approve searches that could
occur anywhere in the world renders the warrant “void ab initio,” as several courts have put it,
Workman, 2016 WL 5791209, at *8; Levin, 186 F. Supp. 3d at 35, which likely means that a
defendant whose computer was in the district from which the warrant issued can still raise a
Rule 41(b) challenge.

122

Matish, 193 F. Supp. 3d at 612; see also McLamb Order, supra note 57, at 17–18; Smith Order,
supra note 119, at 15; Jean, 2016 WL 4771096, *15; Darby, 190 F. Supp. 3d at 536 (“[u]sers of
Playpen digitally touched down in the Eastern District of Virginia when they logged into the
site” and installation of the tracking device therefore occurred within the district).

123

Hammond, 2016 WL 7157762, at *4.

124

Adams, 2016 WL 4212079, at *6; see also Dzwonczyk, 2016 WL 7428390, at *7; Libbey-Tipton
Order, supra note 119, at 7–8; Levin, 186 F. Supp. 3d at 34; Michaud, 2016 WL 337263, at *6;
see also Kahler, 2017 WL 586707, at *6 (fitting the NIT into the (b)(4) exemption would require
“torturing the language” of the rule).

125

See Levin, 186 F. Supp. 3d at 34 (rejecting this claim); In re Warrant, 958 F. Supp. 2d at 757
(same).

126

Subsection (b)(3) is not, however, entirely irrelevant in non-terrorism cases. One court in a case
involving the Playpen NIT warrant reasoned, for instance, that because the drafters expressly
lifted all territorial limits for investigations involving terrorism in subsection (b)(3), they plainly
“knew how to avoid the territorial limit on issuance of warrants when they wished to do so.”
Arterbury R&R, supra note 72, at 17. This expressio unius argument is a powerful one for
warrants issued before December 1, 2016, and can be used to respond to the government’s
repeated urging of a “flexible application of the Rule” that would authorize extra-district
searches. Werdene, 188 F. Supp. 3d at 441.

127

Workman, 2016 WL 5791209, at *4.

128

Arterbury R&R, supra note 72, at 17 n.7.

129

Torres, 2016 WL 4821223, at *6; see also Dzwonczyk, 2016 WL 7428390, at *8; Libbey-Tipton
Order, supra note 119, at 8.

130

Acevedo-Lemus, 2016 WL 4208436, at *8.

31

131

Darby, 190 F. Supp. 3d at 536.

132

See, e.g., Levin, 186 F. Supp. 3d at 40 (not questioning this proposition).

133

Cf. Eure, 2016 WL 4059663, at *8 (culpability of the FBI agents “is reduced because of the need
to obtain the warrant quickly.”).

134

See, e.g., Darby, 190 F. Supp. 3d at 538 (finding suppression unwarranted even if the NIT
warrant was void in part because “the officers in charge of this investigation are not at all
culpable” and “[t]he FBI should be applauded for its actions in this case.”).

135

Carlson R&R, supra note 93, at 11–22; Croghan, 2016 WL 4992105, at *8; Workman, 2016 WL
5791209, at *10; Arterbury R&R, supra note 72, at 27; Levin, 186 F. Supp. 3d at 42.

136

Carlson R&R, supra note 93, at 30.

137

Scarbrough, 2016 WL 5900152, at *1; Broy, 2016 WL 5172853, at *9; Ammons, 2016 WL
4926438, at *9. But see Croghan, 2016 WL 4992105, at *6 (NIT deployment constituted
warrantless search and good-faith exception does not apply because warrant was void ab initio).
In re Warrant finds constitutional defects in a NIT warrant, but did not involve a suppression
motion. See In re Warrant, 958 F. Supp. 2d at 755 (denying application for search warrant). The
Brooks court has not yet determined whether the NIT violated the Fourth Amendment.

138

Owens, 2016 WL 7053195, at *8.

139

See, e.g., Eure, 2016 WL 4059663, at *8; Matish, 193 F. Supp. 3d at 622–23; Darby, 190 F.
Supp. 3d at 538–39; Werdene, 188 F. Supp. 3d at 452–53; Reibert, 2015 WL 366716, at *3.

140

United States v. Leon, 468 U.S. 897 (1984).

141

Reibert, 2015 WL 366716, at *3 (quoting United States v. Grant, 490 F.3d 627, 632 (8th Cir.
2007)). In the NIT warrant context, numerous courts have found that the magistrate judge who
issued the warrant, rather than the law enforcement agents who sought it, was at fault and have
accordingly refused to suppress the evidence obtained through the NIT because “[t]he FBI
agents can hardly be faulted for failing ‘to understand the intricacies of the jurisdiction of
federal magistrates.’” Ammons, 2016 WL 4926438, at *9 (quoting Darby, 190 F. Supp. 3d at
538).

142

See Herring v. United States, 555 U.S. 135, 147–48 (2009); Arizona v. Evans, 514 U.S. 1, 14–16
(1995).

143

See Levin, 186 F. Supp. 3d at 40 (citing Herring v. United States, 555 U.S. 135, 142 (2009)).

144

Owens, 2016 WL 7053195, at *8; Scarbrough, 2016 WL 5900152, at *1; Broy, 2016 WL 5172853,
at *9 (“[L]aw enforcement exhibited laudable conduct in this case.”); Ammons, 2016 WL
4926438, at *9; but see Carlson R&R, supra note 93, at 19–22, 28–29.

145

Levin, 186 F. Supp. 3d at 41. Levin relied on the holding in United States v. Scott, 260 F.3d 512
(6th Cir. 2001), and dicta from several state-court cases for the proposition that exclusion is
warranted under such circumstances. 186 F. Supp. 3d at 40 & n.17. Levin also correctly noted
that the holding in Scott was repudiated by the Sixth Circuit in light of subsequent
developments in the Supreme Court’s exclusionary rule jurisprudence. Id. at 40 (citing United
States v. Master, 614 F.3d 236, 239 (6th Cir. 2010)). While the Supreme Court’s later cases
indeed frame exclusion as the exception rather than the rule, the Supreme Court has never
directly addressed the question of whether Leon applies when a warrant was issued in excess of
a magistrate judge’s jurisdiction, and it is fair to characterize this as an open question.

146

Levin, 186 F. Supp. 3d at 41 (citing United States v. Curzi, 867 F.2d 36 (1st Cir. 1989)).

32

147

Carlson R&R, supra note 93, at 15–16; Croghan, 2016 WL 4992105, at *6; Workman, 2016 WL
5791209, at *8; Arterbury R&R, supra note 72, at 26. But see Ammons, 2016 WL 4926438, at *8
(holding that good-faith exception is not foreclosed where warrant is void ab initio).

148

Herring, 555 U.S. at 141; see also Werdene, 188 F. Supp. 3d at 451–52 (heavily emphasizing the
utilitarian calculus in finding suppression unwarranted).

149

Acevedo-Lemus, 2016 WL 4208436, at *8 (“The severe penalty of suppression should not be
levied against the government (and society generally) merely because the government had the
good sense to seek an amendment to Rule 41.”); see also Werdene, 188 F. Supp. 3d at 451–52
(same).

150

Because any Fourth Amendment defects in NIT warrants are less obvious than the Rule 41(b)
defects (as indicated by the analysis above and by the fact that more courts have found Rule
41(b) violations than Fourth Amendment violations), the balancing test is even less likely to
favor defendants when applied to constitutional deficiencies that may be found in future cases.

151

See Werdene, 188 F. Supp. 3d at 442 (collecting cases).

152

See e.g., United States v. Hornick, 815 F.2d 1156, 1158 (7th Cir. 1987) (Easterbrook, J.) (“In light
of Leon, it is difficult to anticipate any violation of Rule 41, short of a defect that also offends the
Warrant Clause of the fourth amendment, that would call for suppression. Many remedies may
be appropriate for deliberate violations of the rules, but freedom for the offender is not among
them.”); Acevedo-Lemus, 2016 WL 4208436, at *7; Matish, 193 F. Supp. 3d at 621–22. In the
Eighth Circuit, recklessness suffices. See United States v. Spencer, 439 F.3d 905, 913 (8th Cir.
2006).

153

Carlson R&R, supra note 93, at 11–14, 19; Croghan, 2016 WL 4992105, at *6; Workman, 2016
WL 5791209, at *8; Arterbury R&R, supra note 72, at 26; Levin, 186 F. Supp. 3d at 36.

154

Carlson R&R, supra note 93, at 15–16; Workman, 2016 WL 5791209, at *8; Arterbury R&R,
supra note 72, at 25–26; Levin, 186 F. Supp. 3d at 35 (citing United States v. Krueger, 809 F.3d
1109, 1115 n.7 (10th Cir. 2015)).

155

There is at least one federal appellate case that finds suppression was warranted for a
“substantive” Rule 41(b) violation without finding that any of the defendant’s Fourth
Amendment rights were violated. See United States v. Glover, 736 F.3d 509, 515 (D.C. Cir.
2013). This case does not explicitly grapple with the question of whether there can be
substantive Rule 41 violations that are not of constitutional magnitude, but simply assumes that
to be the case. It should be cited, along with Levin (which relies on it), by defendants in NIT
warrant cases where the availability of suppression for violation of Rule 41 is at issue.

156

Carlson R&R, supra note 93, at 15–16; Croghan, 2016 WL 4992105, at *6; see also Broy, 2016
WL 5172853, at *8.

157

Ammons, 2016 WL 4926438, at *6–7, 9.

158

Michaud, 2016 WL 337263, at *6 (alteration and citation omitted).

159

Adams, 2016 WL 4212079, at *7; see also Levin, 186 F. Supp. 3d at 37–38; Orin Kerr,
Government ‘hacking’ and the Playpen search warrant, Washington Post, Sept. 27, 2016,
https://www.washingtonpost.com/news/volokhconspiracy/wp/2016/09/27/governmenthacking-and-the-playpen-search-warrant/?utm_term=.6603f6da28a3 (quoting United States v.
Krueger, 809 F.3d 1109, 1114 (10th Cir. 2015)).

160

This problem would technically be surmountable if the government applied for NIT warrants in
all 94 federal judicial districts. See Acevedo-Lemus, 2016 WL 4208436, at *7 (noting “burden
and expense of such an undertaking”). That prospect is probably sufficiently remote, however,
for a court to consider the defect essentially incurable. See Werdene, 188 F. Supp. 3d at 441–42
(emphasizing that this approach would be nearly impossible). At the same time, some courts
have found no prejudice based on the assumption that a district judge could have issued the

33

warrant notwithstanding Rule 41(b)’s territorial limitations on magistrate judges. See
Hammond, 2016 WL 7157762, at *5.
161

See Levin, 186 F. Supp. 3d at 38 (collecting examples of non-prejudicial defects). See also
Pierce, 2014 WL 5173035, at *5.

162

See Adams, 2016 WL 4212079, at *8 (finding prejudice but denying suppression under goodfaith exception); Arterbury R&R, supra note 72, at 19–23; Levin, 186 F. Supp. 3d at 37–38. But
see Jean, 2016 WL 4771096, at *18 (finding no prejudice because a district judge could have
authorized the warrant); Acevedo-Lemus, 2016 WL 4208436, at *7 (finding no prejudice
because FBI could have acquired warrant in each district).

163

See, e.g., Michaud, 2016 WL 337263, at *7.

164

See Werdene, 188 F. Supp. 3d at 446–47 (citing United States v. Hall, 505 F.2d 961, 964 (3d Cir.
1974)); see also United States v. Searp, 586 F.2d 1117, 1125 (6th Cir. 1978) (describing the Third
Circuit’s test as “more restrictive”).

165

See Hall, 505 F.2d at 964.

166

Werdene, 188 F. Supp. 3d at 451–52.

167

Matish, 193 F. Supp. 3d at 622 (quoting United States v. Simons, 206 F.3d 392, 403 (4th Cir.
2000)).

168

See Acevedo-Lemus, 2016 WL 4208436, at *8 (rejecting argument that proposed Rule 41
amendment shows government’s bad faith); see also Hammond, 2016 WL 7157762, at *5;
Knowles, 2016 WL 6952109, at *14.

169

Werdene, 188 F. Supp. 3d at 451–52.

170

Carlson R&R, supra note 93, at 29–30.

171

Hammond, 2016 WL 7157762, at *5–6; see also Perdue, 2017 WL 661378, at *5; Pawlak, 2017
WL 661378, at *7; United States v. Kim, No. 16-CR-191 (PKC), 2017 WL 394498 (E.D.N.Y. Jan.
27, 2017); Tran Order, supra note 119; United States v. Vortman, No. 16-CR-00210-TEH-1, 2016
WL 7324987, at *4 (N.D. Cal. Dec. 16, 2016); Tippens Order, supra note 119, at 10; United States
v. Anzalone, No. 15-10347-PBS, 2016 WL 6476939, at *4 (D. Mass. Oct. 28, 2016) [hereinafter
Anzalone II]; Allain, 2016 WL 5660452, at *13; Minute Entry, United States v. Michaud, No.
3:15-cr-05351-RJB (W.D. Wash. Jan. 22, 2016), ECF No. 135 (oral order denying motion to
dismiss indictment); see also Order Denying Defendant’s Motion to Dismiss for Outrageous
Government Conduct at 2–3, United States v. Chase, 5:15-cr-00015-RLV-DCK-1 (W.D.N.C.
Sept. 9, 2016), ECF No. 85.

172

See United States v. Bogart, 783 F.2d 1428, 1436 (9th Cir. 1986), vacated in part on other
grounds, United States v. Wingender, 790 F.2d 802 (9th Cir. 1986).

173

See United States v. Archer, 486 F.2d 670, 677 (2d Cir. 1973).

174

See, e.g., United States v. Twigg, 588 F.2d 373, 379–81 (3d Cir. 1978) (finding dismissal
warranted where government had provided so much direction and assistance to defendants in
creating a drug laboratory that it had almost single-handedly fomented the entire crime).

175

Bogart, 783 F.2d at 1438.

176

Archer, 486 F.2d at 676–77.

177

Paroline v. United States, 134 S. Ct. 1710, 1726 (2014) (explaining the effect of viewing child
pornography on the victims depicted).

178

United States v. Chin, 934 F.2d 393, 399 (2d Cir. 1991).
34

179

Tippens Order, supra note 119, at 8.

180

Id.; But see Tran Order, supra note 119, at 11–12 (rejecting this argument).

181

Tippens Order, supra note 119, at 8.

182

See United States v. Black, 733 F.3d 294, 302–03 (9th Cir. 2013) (noting that there is no bright
line test to determine whether the government acted outrageously, but outlining the following
factors for consideration: (1) known criminal characteristics of the defendants; (2)
individualized suspicion of the defendants; (3) the government’s role in creating the crime; (4)
the government’s encouragement to commit the offense; (5) the nature of the government’s
participation in the offense; and (6) the balance between the nature of the crime and the
necessity of the conduct).

183

See, e.g., United States v. Owens, No. 16-CR-38-JPS, 2016 WL 7079617, at *5 (E.D. Wis. Dec. 5,
2016).

184

See, e.g., Vortman, 2016 WL 7324987, at *4; Allain, No. 15-CR-10251, 2016 WL 5660452, at *13.

185

Anzalone II, supra note 171, at *4.

186

Id. (“It is troubling that an agent stated that the Producer's Pen would be returning in the future
because that section might have encouraged members to produce and share new child
pornography (although there is no evidence it did so).”).

187

Hammond, 2016 WL 7157762, at *5 (quoting government press release); see also The National
Strategy for Child Exploitation and Prevention and Interdiction: A Report to Congress, U.S.
Dep’t of Justice (Aug. 2010), https://www.justice.gov/psc/docs/natstrategyreport.pdf; Victims
of Child Pornography, U.S. Dep’t of Justice, https://www.justice.gov/criminal-ceos/childpornography (last visited Jan. 9, 2017) (“Once an image is on the Internet, it is irretrievable and
can continue to circulate forever.”).

188

Exhibit B - NIT Warrant Application ¶ 19, United States v. Matish, 4:16-cr-16 (E.D. Va. Mar. 17,
2016), ECF No. 18-2.

189

See, e.g., Anzalone II, supra note 171, at *4. But the Anzalone court suggested that the seeming
increase in users after the FBI took control of the website was caused by fewer users logging in
during the early stages of the website, and was in line with more recent trends.

190

Id. at *2.

191

Workman, 2016 WL 5791209, at *10.

35

APPENDIX A: GLOSSARY
Activating Computer: an individual computer that “triggers” malware by visiting a
certain website or file download.
CIPAV: Computer and Internet Protocol Address Identifier. The term that the
Federal Bureau of Investigation (FBI) used in documents revealed via a 2007 FOIA
request to refer to a technology that, when installed on a user’s computer, allows the
FBI to collection identifying information such as an IP or MAC address.
(https://www.eff.org/deeplinks/2011/04/new-fbi-documents-show-depthgovernment). See “Network Investigative Technique.”
Dark Web: all websites that hide their IP addresses. These sites, often called hidden
or onion services, cannot be found using typical search engines like Google. Users may
only access the Dark Web via software known as Tor. Typically, but not always, users
must know the exact URL of a Dark Website in order to visit it.
DarkNet: see “Dark Web.”
Encryption: the conversion of electronic data into another form, called ciphertext,
which masks the true content unless and until a decryption tool, called a “key,” is used
to reveal it. The primary purpose of encryption is to protect the confidentiality of
digital data stored on computer systems or transmitted via the internet or other
computer networks. (http://searchsecurity.techtarget.com/definition/encryption)
Environment Variables: term used in affidavit and warrant applications to
encompass operating system type and version, browser type and version, language the
browser is using, and more.
Internet Service Provider: a company that provides customers with internet
access.
IP Address: numeric address used to direct information over the internet, and which
can be used to identify computers or other devices accessing the internet.
Tor: originally stood for The Onion Router. Software that allows its users to connect
to the internet via a series of what it calls “virtual tunnels.” Essentially, Tor enlists a
network of volunteer servers through which it routes a user’s internet activity.
Functionally, this bounces the user’s IP address from server to server, changing it and
stripping the former IP address when the connection is routed through another
“node.” This preserves internet anonymity.
Tor Entry Node: the Tor relay node through which a Tor user first connects to the
Tor network. The entry node receives the Tor user’s website request, strips the request
of identifying information and passes it on to the next relay node. Note that an entry
node can view a Tor user’s real IP address, although a user may employ techniques
such as a “Virtual Private Network” (VPN) to hide their real IP address from the Tor
entry node.

36

Tor Relay Node: a computer or server acting as a node in the Tor network that
relays the Tor user’s website request to the next node. This term encompasses the
“Tor Entry Node.”
Malware: a program that is inserted into a system, usually covertly, with the intent
of compromising the confidentiality, integrity, or availability of the victim’s data,
applications, operating system, or of otherwise annoying or disrupting the victim.
(NIST SP 800-83 Rev. 1)
Network Investigative Technique: a broad term employed by the Federal Bureau
of Investigation (FBI) and other law enforcement entities to refer to an investigative
technique that involves “hacking” or remotely access a computer to install malicious
software without the user’s consent or permission to control the computer and often
to collect information. (https://www.justsecurity.org/15018/justice-departmentproposal-massive-expand-fbi-extraterritorial-surveillance/)
Watering Hole Attack: a security exploit in which the attacker seeks to
compromise a specific group of end users by infecting websites that members of the
group are known to visit. The goal is to infect a targeted user's computer and gain
access to the network at the target's place of employment.
(searchsecurity.techtarget.com/definition/watering hole-attack)
Network Level Message: an exchange of technical information between two
computers.
MAC Address: a numeric address that uniquely identifies the network interface card
in a computer, often used by the Federal Bureau of Investigation (FBI) or other law
enforcement entities to associate online behavior with a specific piece of hardware.
Virtual Private Network: an encrypted network, built on top of existing physical
networks, that provides a secure communications tunnel for data and other
information transmitted between networks. A VPN is one way that a user can hide
their IP address from the Tor entry node or from law enforcement surveillance
techniques.

37

APPENDIX B: TABLE OF ORDERS ON MOTIONS TO SUPPRESS
Case

Date

Court

Case No.

Type

Search?

In re Warrant
to Search a
Target
Comput. at
Premises
Unknown
U.S. v. Pierce

4/22/13

S.D.
Tex.

958 F.
Supp. 2d
753

Bank
fraud/
identity
theft

Yes.

10/14/14

D.
Neb.

2014 WL
5173035

Torpedo

U.S. v. Reibert

1/27/15
12/22/15

U.S. v.
Michaud

1/28/16

2015 WL
366716
2015 WL
9308226
2016 WL
337263

Torpedo

U.S. v. Cottom

D.
Neb.
D.
Neb.
W.D.
Wash.

U.S. v.
Stamper

2/19/16

S.D.
Ohio

1:15-cr-109

Playpen

Not
reached.

U.S. v. Epich

3/14/16

No.

Not reached.

U.S. v.
Arterbury

4/25/16

Not
reached.
Assumes
yes.
Not
reached.

No.

5/5/16

2016 WL
953269
186 F.
Supp. 3d 26
15-CR-182JHP

Playpen

U.S. v. Levin

E.D.
Wis.
D.
Mass.
N.D.
Okla.

Yes
(substantive).
Yes
(substantive).

U.S. v.
Werdene

5/18/16

E.D.
Pa.

188 F.
Supp. 3d
431

Playpen

No.

No.

Torpedo
Playpen

Playpen
Playpen

Fourth
Am.
violation?
Yes. Warrant
affidavit
lacks
particularity.

Rule 41
violation?

Suppression?

Yes.

N/A: Warrant application denied.

Not
reached.

No.

No. No showing of prejudice or
reckless disregard.

Not
reached.
Not
reached.
Not
reached.

No.

No (notice
provision
only).
Not raised.
Not
discussed.
Yes
(technical).

No.

38

No.
No, even if
nets many
people.
No.

Not reached.

Yes
(technical).

Yes
(technical).

No. Good-faith exception applies.

No. Good-faith exception applies. No
showing of prejudice or deliberate
disregard.
No. Good-faith exception applies. No
showing of prejudice or deliberate
disregard.
No.
Yes. Defendant prejudiced, and goodfaith exception inapplicable.
Yes. Good-faith exception cannot
apply. Exigent circumstances
exception does not apply.
No. Did not offend fundamental
fairness; no prejudice. Good-faith
exception applies.

Case

Date

Court

Case No.

Type

Search?

U.S. v. Darby

6/3/16

E.D.
Va.

190 F. Supp.
3d 529

Playpen

Yes.

U.S. v. Matish

6/23/16

E.D.
Va.

193 F.
Supp. 3d
585

Playpen

No.

U.S. v. Rivera

7/20/16

E.D.
La.

2:15-cr266-CJBKWR

Playpen

U.S. v. Eure
(same judge as
Darby)

7/28/16

E.D.
Va.

2016 WL
4059663

Playpen

Assumes
yes (but
also finds
no in Rule
41 section).
Not
reached.

U.S. v. Laurita

8/5/16
8/8/16

2016 WL
4179365
2016 WL
4208436

Torpedo

U.S. v. v.
AcevedoLemus

D.
Neb.
C.D.
Cal.

Playpen.

Not
reached.
No.

39

Fourth
Am.
violation?
No, even if
nets many
people and
describes
homepage
inaccurately.
No. No
warrant
required.
Also, not
anticipatory;
inaccurate
description
immaterial
and not
intentional.
No,
sufficiently
particular.

Rule 41
violation?

Suppression?

No. Rule
41(b)(4).

No. Even if constitutional violation,
not intentional.

No. Rule
41(b)(4).

No. Even if needed warrant, goodfaith exception applies. Even if rule
violation, not constitutional, no
prejudice, and no deliberate
disregard.

Yes
(technical).

No. No prejudice, and good-faith
exception applies.

No, not
anticipatory
and even if
describes
homepage
inaccurately.
Not reached.

No. Relies on
Darby.

No. Even if constitutional violation,
diminished by need to obtain warrant
quickly. Even if rule violation, not
deliberate.

No. Rule
41(b)(4).
Not reached.
Rule 41(b)(4)
could apply.

Not reached.

No.

No. Even if rule violation, not
constitutional, no prejudice, not
intentional. Good-faith exception
applies.

Case

Date

Court

Case No.

Type

Search?

Rule 41
violation?

Suppression?

Yes.

Fourth
Am.
violation?
No.

U.S. v. Adams

8/10/16

M.D.
Fla.

2016 WL
4212079

Playpen

Yes.

Playpen

No.

No.

Yes
(technical).

2016 WL
5791209

Playpen

Yes.

Not reached.

Yes
(substantive).

W.D.
Tex.
W.D.
Ark.

2016 WL
4821223
2016 WL
4771096

Playpen

Yes.

Not reached.

Playpen

No.

9/14/16

D.S.C.

2016 WL
6952109

Playpen

U.S. v.
Ammons
U.S. v.
Croghan

9/14/16

W.D.
Ky.
S.D.
Iowa

2016 WL
4926438
2016 WL
4992105

Playpen

Assumes
yes but
could find
no.
Yes
(privacy of
contents
seized).
Yes.

Yes
(technical).
No. Rule
41(b)(4).

No. Rule violation was not intentional
or deliberate. Defendant prejudiced,
but good-faith exception applies.
No. Defendant not prejudiced, FBI
did not act with deliberate disregard,
and warrant executed in good faith.
Yes. Defendant prejudiced. Goodfaith exception inapplicable where
warrant is void ab initio.
No. Rule violation not in bad faith.

U.S. v.
Henderson

9/1/16

N.D.
Cal.

2016 WL
4549108

U.S. v.
Workman

9/6/16

D. Co.

U.S. v. Torres

9/9/16

U.S. v. Jean

9/13/16

U.S. v.
Knowles

Playpen

Yes.

Not reached.

U.S. v. Broy

9/21/16

C.D.
Ill.

2016 WL
5172853

Playpen

Yes.

U.S. v.
Anzalone

9/22/16

D.
Mass.

2016 WL
5339723

Playpen

Yes.

Yes (through
Rule
violation)
No, even if
inaccurate
description;
triggering
event
occurred.

9/19/16

40

No,
particularity
satisfied.

Yes
(technical).

Yes.

Yes
(substantive).
Yes
(substantive).
Yes
(substantive).
Yes.

No. Even if rule violation, technical
and defendant not prejudiced. Even if
warrant were deficient, good-faith
exception applies.
No. Not void ab initio. No prejudice.
Good-faith and exigent circumstance
exceptions apply.
No. Good-faith exception applies even
though warrant void ab initio.
Yes. Warrant was void ab initio and
good-faith exception cannot apply.
Defendant prejudiced.
No. Good-faith exception applies, and
no prejudice.
No. Good-faith exception applies, and
warrant not void ab initio.

Case

Date

Court

Case No.

Type

Search?

U.S. v. Smith

9/28/16
9/29/16

U.S. v.
Scarbrough
U.S. v. LibbeyTipton
U.S. v.
Johnson

10/11/16

4:15-CR00467
2016 WL
5660452
2016 WL
5900152
1:16 CR 236

Playpen

U.S. v. Allain

S.D.
Tex.
D.
Mass
E.D.
Tenn.
N.D.
Ohio
W.D.
Mo.

Not
reached.
Not
reached.
Yes.

2016 WL
6136586

Playpen

U.S. v. Stepus

10/28/16
11/14/16

2016 WL
6518427
2016 WL
6683481

Playpen

U.S. v. Kienast

D.
Mass.
E.D.
Wis.

U.S. v. Lough

11/18/16

U.S. v.
McLamb
U.S. v.
Tippens
U.S. v. Owens

11/28/16

2016 WL
6834003
2:16cr92

12/6/16

16-Cr5110RJB
2016 WL
7053195
2016 WL
7131475

Playpen

U.S. v.
Duncan

N.D.
W.Va.
E.D.
Va.
W.D.
Wash.
E.D.
Wis.
D. Or.

U.S. v.
Hammond

12/8/16

N.D.
Cal.

U.S. v.
Vortman

12/16/16

N.D.
Cal

10/19/16
10/20/16

11/30/16
12/5/16

Playpen
Playpen
Playpen

Fourth
Am.
violation?
No.
No.
Yes.

Rule 41
violation?

Suppression?

No. Rule
41(b)(4).
Yes
(technical).
Yes.

No. Even if violation, good-faith
exception applies.
No. Good-faith exception applies.

Yes (assumes
substantive).
No. Rule
41(b)(4).

No. Good-faith exception applies.

Yes
(technical).
Not reached.

No. Good-faith exception applies.

Not
reached.
Assumes
yes (but
not for IP
address).
Not
reached.
Not
reached.

Not reached.

Playpen

No.

No.

Playpen

No.

Playpen

Not
reached.
Not
reached.
Yes.

Playpen

Yes.

No.

Yes
(technical).

2016 WL
7157762

Playpen

Yes.

Yes
(technical).

2016 WL
7324987

Playpen

Yes.

No,
sufficient
particularity.
No.

Playpen

41

No.

Not reached.
No.

No.
Yes.

No. Rule
41(b)(4).
No. Rule
41(b)(4).
Yes
(technical).
Yes.

Yes
(technical).

No. Good-faith exception applies.

No. Even if violation, good-faith
exception applies, and no prejudice.

No. Warrant may have been valid
under Rule 41(b)(4) and good-faith
exception applies regardless.
No. Even if violation, good-faith
exception applies, and no prejudice.
No.
No.
No, in light of Seventh Circuit
precedent.
No. Warrant not void ab initio. No
prejudice and good-faith exception
applies.
No. No prejudice and no evidence of
deliberate disregard.
No. Good-faith exception applies.

Case

Date

Court

Case No.

Type

Search?

U.S. v. Brooks

12/22/16
(R&R)

W.D.
N.Y.

2016 WL
7409852

Playpen

U.S. v.
Dzwonczyk
U.S. v. Tran
(same judge as
Anzalone)
U.S. v.
Sullivan
U.S. v.
Deichert
U.S. v. Austin

12/23/16

D.
Neb.
D.
Mass.

2016 WL
7428390
16-10010PBS

Playpen

Requested
additional
briefing &
evidentiary
hearing.
Yes.

Fourth
Am.
violation?
Requested
additional
briefing &
evidentiary
hearing.
No.

Playpen

Not
reached.

No. Relies on
Anzalone.

U.S. v. Kahler

2/14/17

U.S. v. Pawlak

2/17/17
2/17/17

2017 WL
661371
2017 WL
661378

Playpen

U.S. v. Perdue
(same judge as
Pawlak)
U.S. v.
Carlson

N.D.
Tex.
N.D.
Tex.

Not
reached.
Not
reached.
Not
reached.
Assumes
yes.
Yes (incl.
IP
address).
Assumes
yes.
Assumes
yes.

No.

2/2/17

2017 WL
201332
2017 WL
398370
2017 WL
496374
2017 WL
511883
2017 WL
586707

Playpen

U.S. v. Jones

N.D.
Ohio
E.D.N.
C.
M.D.
Tenn.
S.D.
Ohio
E.D.
Mich.

D.
Minn.

16-317
(JRT/FLN)

Playpen

Yes.

Yes, lacked
particularity.

12/28/16
1/18/17
1/28/17
2/2/17

3/23/17
(R&R)

Playpen
Playpen
Playpen
Playpen.

Playpen

42

No.
Not reached.
Not reached.
No.
No.
No.

Rule 41
violation?

Suppression?

Not reached.

Not reached.

Yes
(technical).
Yes.

No. No prejudice and good-faith
exception applies.
No. Relies on Anzalone.

No. Rule
41(b)(4).
Yes
(technical).
No. Rule
41(b)(4).
No. Rule
41(b)(4).
Yes.

No.

Yes
(technical).
Yes
(technical).

No. Good-faith exception applies.

Yes
(substantive).

Yes. Warrant was void ab initio and
good-faith exception cannot apply.
Defendant prejudiced.

No.
No. Even if violation, no deterrence.
No. Even if violation, good-faith
exception applies.
No.

No. Good-faith exception applies.

APPENDIX C: SAMPLE BRIEFS AND
LETTERS TO COMPEL DISCOVERY

43

FIRST SAMPLE MOTION TO COMPEL DISCOVERY

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
UNITED STATES OF AMERICA

)
)
)
)
)

v.

Criminal No. 2:16cr92

DEFENDANT’S MOTION TO COMPEL DISCOVERY
, through counsel and pursuant to Federal Rule of Criminal Procedure
16(d), respectfully moves this Court for an order compelling discovery material to trial and the
defense’s pending motions to suppress, ECF Nos. 14 and 15.
*

*

*

The defense asks the Court to order the government to provide the source code or
programming code for the exploit that the government used to gain access to

’s

computer as well as discovery on the unique identifier generator through which the government
purports to link

to particular activity on the Playpen website. Earlier today, the

government provided undersigned counsel a letter in which the government invoked a “law
enforcement privilege” and stated its intent not to provide this data, even under a protective
order.
The defense is seeking a copy of the exploit and ID generator so that a computer
forensics expert can independently determine the full extent of the vulnerability created by the
government on

’s computer when it deployed the NIT; whether the NIT interfered

with or compromised any data or computer functions; and whether the government’s
representations about how the exploit worked are complete and accurate.
information is relevant to

This forensic

’s First and Second Motions to Suppress. See United
1
44

Case 2:16-cr-00092-RBS-RJK Document 16 Filed 07/29/16 Page 2 of 7 PageID# 287

States v. Cranson, 453 F.2d 123, 127 n.6 (4th Cir. 1971) (“The defendant has remedies to secure
pre-trial information on identification procedures undertaken by the Government in advance of
trial as a basis for a motion to suppress.”); United States v. Wilford, 961 F. Supp. 2d 740, 756 (D.
Md. 2013), on reconsideration in part (Nov. 27, 2013) (holding that “information material to the
Motion to Suppress, although sought in connection with a pretrial proceeding, might alter the
‘quantum of proof’” at trial and is therefore discoverable under Rule 16). The discovery is also
relevant to assessing other potential pretrial issues that the lack of discovery has thus far
prevented the defense from being able to adequately evaluate. Indeed, one of the FBI’s lead
investigators on the Playpen case has stated in a declaration that “[d]etermining whether the
government exceeded the scope of the [NIT] warrant thus requires an analysis of the NIT
instructions delivered to [the defendant’s] computer.” Decl. of FBI Special Agent Daniel Alfin
in Support of Gov’t. Mot. for Reconsideration, at ¶ 7, in United States v. Michaud, Crim. No. 155351, ECF No. 166-2 (W.D. Wash. Mar. 28, 2016).
The requested items are also material to preparing a defense at trial. For example, the
defense needs access to the code for the unique identifier to see how the government was
purportedly able to link the information it collected to a particular computer or to a particular
deployment of the NIT. And the defense needs to investigate the chain of custody for data
collected remotely by the NIT. The need for these two critical components—the unique ID
generator and the exploit—are discussed in the declaration of Vlad Tsyrklevich, which is being
filed in this case under seal because of its sealed status in Michaud. See Ex. A (SEALED),
Tsyrklevich Decl. from Michaud. The Office of the Federal Public Defender for the Eastern
District of Virginia is also representing the defendant in related cases before Judge Morgan,
United States v. Matish, Crim. No. 4:16cr16 (E.D. Va. Apr. 6, 2016), and Judge Doumar, United

2
45

Case 2:16-cr-00092-RBS-RJK Document 16 Filed 07/29/16 Page 3 of 7 PageID# 288

States v. Eure, No. 2:16cr43 and United States v. Darby, No. 2:16cr36. Professor Matthew
Miller has been retained by this Office in Matish, Darby, and Eure and his declaration explaining
the materiality of the requested technical evidence is also attached here as well. See Ex. C, Decl.
of Dr. Matthew Miller. Dr. Christopher Soghoian has also been retained as a defense expert on
these issues and may be called to testify at a hearing.
Although all of the questions discussed above are material to

’s trial

defense, to date, the government has provided no actual evidence on these issues. The exploit
and unique ID generator hold the answers to these questions. But the government is apparently
unwilling to produce them. Instead, the government is willing to provide the conclusions that it
believes can be drawn from its technological evidence. Here, the defense requests access to the
evidence upon which the government’s proposed conclusions are based.
Due process demands that

be afforded the opportunity to verify that the

government’s evidence actually supports its allegations. The government’s monopoly on the
forensic evidence will allow its expert to testify at trial about what the NIT did, how it collected
information, and how it allowed the government to verify what the user of

’s

computer was doing and when. By invoking the law enforcement privilege, the government
seeks to deny

access to the underlying data upon which the government’s key

expert testimony against him will rest.
It is worth noting that, in connection with other NIT/Playpen cases, courts have ordered
the government to make this very evidence available to the defense for inspection and forensic
analysis. See Order Granting Third Motion to Compel Discovery in Michaud, Crim. No. 155351, ECF No. 161 (W.D. Wash. Feb. 17, 2016) (ordering government to provide full NIT
evidence, including the exploit, in Playpen case). In its letter to undersigned counsel, the

3
46

Case 2:16-cr-00092-RBS-RJK Document 16 Filed 07/29/16 Page 4 of 7 PageID# 289

government suggested that the NIT source code is not “material” under Rule 16. But even on
that specific issue, other federal judges have disagreed. Analyzing the materiality of the NIT
source code in a Playpen case, the Michaud court held:
I am satisfied that the defense has shown materiality here to
preparing the defense…. The government hacked into a whole lot
of computers on the strength of a very questionable search warrant.
… Much of the details of this information is lost on me, I am
afraid, the technical parts of it, but it comes down to a simple
thing. You say you caught me by the use of computer hacking, so
how do you do it? How do you do it? A fair question.
Order, ECF No. 205, 2 in United States v. Michaud, Case No. 3:15cr5351 (W.D. Wash. May 18,
2016) (quoting ECF No. 162, 17-19) (attached as Exhibit D). In the same order, the Michaud
court further explained,
The defendant is not required to accept the government’s
assurances that reviewing the N.I.T. code will yield no helpful
information. The government asserts that the N.I.T. code will not
be helpful to the defense, but that information may well, in the
hands of a defense lawyer with a fertile mind, be a treasure trove
of exculpatory evidence.
Id., at 4 (emphasis added). Thus, the Michaud court held that the full NIT source code is
material under Rule 16 and may well constitute Brady material.
In other cases involving NITs, the Department of Justice has not invoked a “law
enforcement privilege,” but rather has volunteered to make the programming code available for
inspection by the defense. See, e.g., Ex. B, at 2 (Department of Justice notice and disclosure
letter in United States v. Cottom, Crim Nos. 8:13-108, 8:15-239 (D. Neb. Dec. 22, 2015),
summarizing government’s disclosures about NIT “Flash application” used in that case,
including “example programming code,” and extending an offer for defense inspection of the
“compiled code for the NIT” stored on government server).

4
47

Case 2:16-cr-00092-RBS-RJK Document 16 Filed 07/29/16 Page 5 of 7 PageID# 290

The defense is prepared to enter into a protective order to address any legitimate
confidentiality concerns the government may have about disclosing the exploit.

Still, the

Government says that it will not produce it, asserting that it is “subject to law enforcement privilege.”
To the extent the government needs to protect the confidentiality of the exploit, confidentiality can be
achieved through the entry of a protective order.

Rule 16 and fundamental notions of due process preclude the government from refusing
to allow the defense to inspect the key forensic evidence at issue in this case. Yet that is the
government’s position. By invoking a law enforcement privilege, the government asks
and the Court to accept without verification the government’s representations about
what their technology did and how it works—questions critical to the defense’s pending motions
and to trial. Here, the government used a sophisticated surveillance tool and then put
’s liberty at stake by initiating a prosecution based on information it gained through that
surveillance. It cannot now, in fairness, claim that the means by which it obtained the evidence it
plans to use against

is subject to a privilege that trumps

’s right to due

process.
*

*

*

For the reasons stated above,

respectfully requests that the Court issue an

Order for disclosure of the records and information sought by the defense, subject to such
conditions or protections that the Court deems appropriate to address any legitimate
confidentiality interests on the part of the Government.

Respectfully submitted,

By:_________/s/_______________
5
48

Case 2:16-cr-00092-RBS-RJK Document 16 Filed 07/29/16 Page 6 of 7 PageID# 291

Amanda C. Conner
VSB # 88317
Attorney for
Office of the Federal Public Defender
150 Boush Street, Suite 403
Norfolk, Virginia 23510
(757) 457-0816
(757) 457-0880 (telefax)
amanda_conner@fd.org

Andrew W. Grindrod
VSB # 83943
Assistant Federal Public Defender
Attorney for
Office of the Federal Public Defender
150 Boush Street, Suite 403
Norfolk, Virginia 23510
(757) 457-0800
(757) 457-0880 (telefax)
andrew_grindrod@fd.org

6
49

EXHIBIT TO FIRST SAMPLE MOTION TO COMPEL
U.S. Department of Justice
Criminal Division

Child Exploitation and Obscenity Section

1400 New York Ave., NW
Suite 600
Washington, DC 20530
(202) 514-5780 FAX: (202) 514-1793

November 7, 2014
Dear Counsel:
Pursuant to Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure, the government
hereby discloses that it intends to elicit testimony from Federal Bureau of Investigation (“FBI”)
Special Agent (“SA”) Steven A. Smith, Jr. and FBI Supervisory Special Agent (“SSA”) P. Michael
Gordon, under Federal Rules of Evidence 702, 703, or 705. Pursuant to Rule 16(b)(1)(C) of the
Federal Rules of Criminal Procedure, the government hereby requests from defendant disclosure
of testimony he intends to use under Rule 702, 703 and/or 705 of the Federal Rules of Evidence
as evidence at trial.
The CVs of SA Smith and SSA Gordon are attached. Their testimony will be based upon
their respective knowledge, skills, training and experience in the areas of computer forensics,
computer programming, computer networking and network management and analysis, computer
forensic data acquisition and analysis, investigations in child exploitation cases, the Internet, and
forensic analysis of digital media including computers, computer servers, and websites. They may
also testify regarding the Internet, the forensic examination of computers and digital media, and
how the Internet is used to trade child pornography. Specifically, they may testify about the
following topics:
•

The Onion Router (“Tor”) anonymity network, including its origin, structure,
function, configuration and software applications; the Tor browser bundle; other
methods to access the Tor network, such as tor2web and onion.to; and investigative
strategies to identify users of the Tor network. Please note that detailed information
about the Tor network, its structure and function, is publicly available at the Tor
project website, www.torproject.org.

•

the structure, operation, monitoring and seizure of data from the websites your
clients are charged with accessing. Such testimony may include a description of
the structure, function, and content of the website, including the child pornography
available (as further described in your client’s Indictment, the search warrant
affidavit authorizing the deployment of a Network Investigative Technique on the
pertinent website, and the search warrant affidavit authorizing a search of your
client’s residence, all of which you have been provided through discovery); unique
session identifiers that track a user’s activity on the site; the particular web pages
accessed by a user during one of those sessions; and particular child pornography
images/videos accessed by a user during one of those sessions. Such testimony
may include but not be limited to the operation of websites, computers and
computer servers, and related technical terms/concepts including HTML, HTTP,

50

PHP, Flash, and Javascript. Please note that a working offline copy of each of those
websites has been made available to you and/or an expert of your choosing for
examination. Further, through discovery, you were provided reports documenting
data obtained from those computer servers, including data pertinent to your client’s
actions on the site. In addition, as we have previously advised you, the computer
server(s) that hosted the websites are, and remain, available for examination by you
or your chosen expert.
•

the “Network Investigative Technique” (“NIT”) that was deployed on each website
and the admission of evidence obtained through the use of that technology. Such
testimony may include: technical concepts underlying the use of technology such
as the NIT, including but not limited to Flash, TCP, proxy servers, IP addresses,
web browsers, computer servers, and exploits; the programming and operation of
websites and computer servers; and the programming, testing and deployment of
computer code on websites and computer servers; the configuration and
deployment of the particular NIT utilized on the websites your clients accessed;
and pre-deployment testing performed regarding the particular NIT utilized on the
websites your clients accessed.

You have previously been provided reports documenting data obtained via the use of the
NIT, which includes IP address information, session identifier information, operating system and
architecture type. We have also previously disclosed to you via e-mails dated September 4, 2014,
and September 23, 2014, incorporated herein by reference, details regarding where the particular
NIT code was obtained and how it operated. In particular, as described in my September 4, 2014,
e-mail message, the technique utilized a Flash application that, when downloaded by a user and
activated by their browser, made a direct TCP connection to a server that the FBI controlled.
Depending on the operating system and version of the user's browser, the connection would bypass
the browser's configured proxy server and reveal the user's true IP address. In addition, the NIT
also sent the user's operating system name and architecture type. Please also see my September 4,
2014 e-mail for example programming code for the Flash application itself. Further, as noted
above and in my September 4 and 23 e-mails, the computer servers that hosted the pertinent
websites contain the compiled code for the NIT. Those servers have been, and remain, available
for examination by an expert of your choice. The experts disclosed herein may testify based upon
their knowledge, skills, training and experience, as to any matters disclosed therein.
In order to avoid any confusion regarding the operation of the NIT, I offer the following
further description of its functionality, about which the experts disclosed herein may testify.
The NIT was a Flash application. Flash applications are commonly present on numerous
Internet websites. The NIT did not consist of a virus or “malware.”
The NIT took advantage of a potential vulnerability in the configuration of a user’s
computer. When a user accessed a page on one of the pertinent websites where the NIT had been
deployed, the NIT computer code would be downloaded to a user’s computer along with the
images/text/content that made up that web page. If a user’s web browser was not configured to
block Flash applications, then the NIT, once downloaded by a user’s computer, would cause the
computer to send a communication (in other words, a request) to a government-controlled
computer that revealed the computer’s IP address, a session identifier, the computer’s operating

51

system and architecture. If a user’s web browser was configured to block Flash applications, then
the NIT would not successfully cause the computer to send such a request. As of November of
2012, the up-to-date Tor browser bundle was configured to block such Flash applications.
Accordingly, the NIT would not have revealed the IP address of such a user, or of a user who had
manually configured his/her browser to connect to the Tor network and opted to block Flash
applications. Because none of your clients were using the up-to-date Tor browser bundle to access
the website in question, and none of your clients configured his computer to block Flash
applications, the NIT successfully identified your client’s IP address.
Special Agent Smith and Supervisory Special Agent Gordon may also testify based upon
their knowledge, skills, training and experience in the area of computer forensics, computer
forensic data acquisition and analysis, investigations in child exploitation cases, and the Internet,
as to the following matters:
·

regarding the Internet, which is a collection of computers and computer networks which
are connected to one another via high-speed data links and telephone lines for the purpose
of communicating and sharing data and information;

·

that connections between Internet computers exist across state and international borders;
and that the Internet is a means of interstate and international communication; indeed,
information sent between two computers connected to the Internet frequently crosses state
and international borders even when the two computers are located in the same state;

·

regarding modems, and how a modem allows any computer to connect to another computer
through the use of telephone, cable, or wireless connection. Electronic contact can be made
to literally millions of computers around the world;

·

regarding Internet Service Providers. Individuals and businesses obtain access to the
Internet through businesses known as Internet Service Providers (“ISPs”). ISPs provide
their customers with access to the Internet using telephone or other telecommunications
lines; provide Internet e-mail accounts that allow users to communicate with other Internet
users by sending and receiving electronic messages through the ISPs’ servers; remotely
store electronic files on their customers’ behalf; and may provide other services unique to
each particular ISP. ISPs maintain records pertaining to the individuals or businesses that
have subscriber accounts with them. Those records often include identifying and billing
information, account access information in the form of log files, e-mail transaction
information, posting information, account application information, and other information
both in computer data and written record format;

·

regarding IP Addresses. An Internet Protocol address (“IP address”) is a unique numeric
address used by each computer on the Internet. An IP address is a series of four numbers,
each in the range 0-255, separated by periods (e.g., 121.56.97.178). Every computer
attached to the Internet must be assigned an IP address so that Internet traffic sent from and
directed to that computer may be properly directed from its source to its destination. Most
ISPs control a range of IP addresses;

·

that when a customer logs into the Internet using the service of an ISP, the computer used

52

by the customer is assigned an IP address by the ISP. The customer's computer retains that
IP address for the duration of that session (i.e., until the user disconnects), and the IP
address cannot be assigned to another user during that period;
·

regarding four basic functions computers and the Internet serve in connection with child
pornography: production, communication, distribution, and storage;

·

regarding how individuals can use computers and the Internet to meet, communicate with
each other, and share files, including but not limited to websites, chat rooms, message
boards, email, instant messaging, news groups, social networking sites, peer-to-peer
programs, ICQ;

·

regarding how child pornographers can transfer non-digital photographs from a camera
into a computer-readable format a scanner, and how digital cameras allow images to be
transferred directly onto a computer. Digital cameras often embed information into digital
pictures, known as metadata, that identifies the camera used to take the picture;

·

regarding how a computer’s ability to store images in digital form makes the computer
itself an ideal repository for child pornography. The size of the electronic storage media
(commonly referred to as the hard drive) used in home computers has grown tremendously
within the last several years. These drives can store hundreds of thousands of images and
videos at very high resolution;

·

regarding how digital images/videos can be stored on external storage media such as thumb
drives, compact disks, external hard drives, mp-3 players, smart phones, and how digital
images/videos can be easily transferred from one digital device to another;

·

regarding dedicated online storage space, such as the “FTP,” or “File Transfer Protocol”
site, and how such a site allows Internet users to maintain a massive and secure private
library of child pornography that is available for viewing or download only by a certain
group of individuals, such as members of the PedoBook online bulletin board;

·

regarding user-created message boards, and how they can be easily created with free or
inexpensive software and commercial web hosting companies;

·

regarding forensic hashing, which is the process of using a mathematical function, often
called an algorithm, to generate a numerical identifier for data (such as a particular file).
If the data is changed, even very slightly (such as the addition or deletion of a comma or a
period), the identifier should change. A hash value can be thought of as a “digital
fingerprint” for data;

·

regarding the use of a “hash set” which contains the hash values of image and video files
associated with known identified victims of child pornography to determine whether these
files are stored within a digital device;

53

·

The process of obtaining and verifying an image of a computer media item, bit-stream
copies, and Message-Digest algorithm 5 (MD5) hash values;

·

Specialized computer terms, including, but not limited to, terms mentioned in this notice
and in his report, such as “.html,” “.lnk” “.jpg,” “.mpg,” “.avi,” “cookie file,” and “file
slack;”

·

Evidence of web browsing activity and e-mail communications, including, but not limited
to, fragments of web pages accessed, cookie files, e-mail messages, and other Internetbased communications stored in locations including, but not limited to, the temporary
Internet file folders, file slack, and unallocated space;

·

The operation, analysis and investigation of websites, bulletin boards, social networking
platforms and other Internet technologies dedicated to the sexual exploitation of children;

·

Online undercover tactics and techniques pertinent to the investigation, identification and
apprehension of suspects engaging in online sexual exploitation of children;

·

Methods, tactics and techniques of individuals who seek to exploit children online.

Please contact me, Assistant U.S. Attorney Michael Norris or Trial Attorney Sarah Chang
or if you have any questions about any of the information provided.

Sincerely,
/s/ Keith Becker__________________
Keith Becker
Trial Attorney
Child Exploitation and Obscenity Section
Criminal Division
United States Department of Justice
Enclosures

54

P. MICHAEL GORDON
801 International Drive
Linthicum Heights, MD 21090
PROFESSIONAL EXPERIENCE
United States Department of Justice
Federal Bureau of Investigation- Special Agent

03/1999 - Present

New Orleans Field Office

07/1999 - 02/2007

Investigated federal white collar crime violations for
approximately two years. Investigated cyber crimes for
approximately six years to include cyber intrusions and served
on the regional Cyber Action Team.
Innocent Images National Initiative

08/2004 - 02/2007

Served as the National Initiative case agent for the New Orleans
Field Office Innocent Images investigation. Conducted 79
original method Peer to Peer file share investigation sessions.
Participated in the testing and development of the eP2P FBI
investigative tool.
FBI Assignments
Hazardous Material Response Team (HMRT)
Assistant Team Leader HMRT
Relief Supervisor
Cyber Squad, New Orleans
Major Case Coordination Unit, FBIHQ
Violent Crimes Against Children Unit, FBIHQ

10/1999 - 02/2007
06/2002 - 02/2007
03/2005 - Present
03/2005 - 02/2007
02/2007 – 03/2014
03/2014 - Present

FBI Innocent Images Unit / Major Case Coordination Unit

02/2007 – 03/2014

Assigned to investigate international and domestic
incidents of child exploitation and the use of file sharing networks in the distribution of child pornography. Lead investigations focused on the identification, location, and arrest of
individuals and groups involved in the trade, distribution, and
production of child pornography and the sexual exploitation
of children via the Internet..
Operation Achilles

02/2007 - 02/2009

Served as the co-case agent investigating an international

55

enterprise focused on individuals who utilized newsgroups
and sophisticated security practices such as multiple layers of
encryption for messages and content and regular use of proxy
IP addresses for the trade and distribution of child pornography.
The case was the first conviction under Title 18, U.S.C. 2252A
and resulted in seven life sentences for 14 indicted subjects.
The case won the Criminal Division’s Assistant Attorney
General Award.
Operation Green Ocean

08/2010 - 12/2012

Served as the case agent investigating an international
conspiracy involving 21 individuals utilizing Facebook to
traffic child pornography images. Six U.S. targets were
convicted and sentenced.
Foreign Bulletin Board

10/2011

Oversaw the review and triage of a foreign language bulletin
board which consisted of over 177 thousand sub-forums, 119
thousand threads, and over 76 thousand active posters responsible
for over 1.7 million posts, over 125 thousand attached image files,
and over 1 million links to third-party hosting sites. Additional
translation of posts, categorization of attached files, and geolocation of over 520 thousand unique IP addresses was necessary
in order determine potential targets based on the volume of data.
FBI Violent Crimes Against Children Unit
Currently assigned as program coordinator for online child
exploitation investigations and special projects

03/2014 - Present

COMPUTER TRAINING
Basic Innocent Images Training
Dallas Crimes Against Children Conference
Image Scan Training
Advanced Innocent Images Training
A+ Certification
Net+ Certification
Cyber Special Agent Career Path Stage II Completed
Cyber Special Agent Career Path Stage III Completed
Cyber Special Agent Career Path Stage IV Completed
INSTRUCTIONAL EXPERIENCE

56

04/2003
08/2006
11/2006
04/2007
04/2009
12/2009
10/2009
12/2009
04/2011

U.S. Instruction
IACLEA Southeast Region, New Orleans, LA
ROCIC Conference, Greensboro, SC
Enhanced Peer-to-Peer Training
Lake Charles Local LE training, Baton Rouge, Louisiana
FBI Basic Online Undercover Training (Innocent Images)
Online Covert Employee Course
National ICAC Conference, San Jose, CA
-eP2P file share investigation techniques
National ICAC Conference, Columbus, OH
-eP2P file share investigation techniques
ICAC Training Class, NCMEC, Alexandria, VA
-eP2P file share investigation techniques
Regional ICAC Conference, San Jose, CA
-Operation Achilles (co-presenter)

2005
2005
03/2006
2006
2007 - Present
2008 - Present
05/2007
05/2008
2008
05/2009

Overseas Instruction
International Training Assistance Unit, Poland
-Basic Cyber Crime Overview and Techniques
International Training Assistance Unit, United Arab Emirates
-Basic Cyber Crime Overview and Techniques
International Training Assistance Unit, Romania
-Basic Cyber Crime Overview and Techniques
Pacific Training Initiative, Thailand
-Innocent Images Overview and Techniques
Pacific Training Initiative, Philippines
-Innocent Images Overview and Techniques

2004
2005
2006
2007
2009

COURTROOM TESTIMONY
United States v. Robert Myron Latham, DNV
2008
-Testified as the investigating undercover agent and
to the methods, procedures and function of P2P file sharing
United States v. Andrew Edward Flyer, DAZ
2008
-Testified as an expert in P2P investigative techniques
United States v. William Ernest Fuller, DAZ
2008
-Testified as an expert in P2P investigative techniques
United States v. James Freeman, et. al (Op. Achilles), NDFL
2009
-Testified on six occasions to identification of subjects
and forensic review of the computer evidence
United States v. David Chiaradio, DRI
2010
-Testified as an expert on the eP2P investigative tool
United States v. Max Budziak, NDCA
2011
-Testified as an expert on the eP2P tool and file share

57

investigations
State of Illinois v. Manuel Sanchez
-Testified as the investigating undercover agent and
methods, procedures and function of P2P file sharing
United States v. Paul Stanley, DMD
-Testified as expert in P2P programs and investigations
United States v. James Driver, EDMI
-Testified as expert in P2P programs and investigations
United States v. Christopher Myers, DMD
-Testified as expert in P2P programs and investigations
United States v. Alan Clifton, DMD
-Testified as expert in P2P programs and investigations
United States v. Timothy Defoggi, DNE
-Testified as expert in online investigations, Internet /
anonymous network basics, websites that facilitate the
trafficking of child exploitation material, and methods/
tactics/operations of trafficking child exploitation material
via the Internet
United States v. Paul Wencewicz, et al, DMT
-Testified as expert regarding investigations related to
online bulletin boards

2011

2012
2012
2012
2013
2014

2014

EDUCATION
United States Naval Academy
Bachelor of Arts, Physics

1993

MILITARY EXPERIENCE
United States Marine Corps
The Basic School (TBS) and Basic Armor Officer Course
Platoon Commander, 1st Tank Battalion, Bravo Company
Executive Officer, HQ Service Company, 1st Tank Bn
Project Officer, Marine Corps Warfighting Lab

58

1993 - 1999
1993 - 1994
1994 - 1996
1996 - 1997
1997 - 1999

Steven A. Smith Jr.
2635 Century Parkway NE
Atlanta, GA 30345
PROFESSIONAL EXPERIENCE
United States Department of Justice
Federal Bureau of Investigation- Special Agent

11/2007 – Present

Cleveland Field Office, Toledo Resident Agency

11/2007 – 10/2011

Investigated federal crimes involving the possession, receipt,
distribution and production of child pornography and cyber
crimes involving phishing/vishing attacks, VoIP intrusions,
website intrusions, ACH fraud, botnets, credit card fraud,
and Distributed Denial of Service (DDos) attacks.
FBI Violent Crimes Against Children, Major Case
Coordination Unit Headquarters

10/2011 – 10/2014

Investigated international and domestic incidents of child
exploitation and the use of bulletin board systems in the
distribution of child pornography. Involved in the review
and triage of over 15 bulletin boards of varying types. Lead
investigations focused on the identification, location, and
arrest of individuals and groups involved in the trade,
distribution, and production of child pornography and the
sexual exploitation of children via the Internet.
Foreign Bulletin Board

12/2011 – 02/2012

Developed the technique and process for the review and triage
of a foreign language bulletin board which consisted of over 177
thousand sub-forums, 119 thousand threads, and over 76
thousand active posters responsible for over 1.7 million posts,
over 125 thousand attached image files, and over 1 million links
to third-party hosting sites. In addition, translation of posts,
categorization of attached files, and geo-location of over 520
thousand unique IP addresses was necessary in order to identify
potential targets based on the volume of data.
Atlanta Field Office

10/2014 – Present

Currently assigned to investigate cyber crimes, to include
computer intrusions.

59

FBI Assignments
Digital Evidence Extraction Technician (DExT)
Relief Supervisor
Toledo RA, Cleveland
Major Case Coordination Unit, FBIHQ
Cyber Squad, Atlanta Field Office
Coordinator
Northern Ohio Cyber Crime Task Force
Northwest Ohio InfraGard Chapter

12/2011 – Present
04/2010 – Present
04/2010 – 10/2011
10/2011 – 10/2014
10/2014 – Present
04/2010 – 10/2011
04/2009 – 10/2011

Regal Lager, Inc.
Information Technology Manager

02/2002 – 11/2007

Member of the Senior Management Team and responsible
for the overall technology direction of the company, to
include long-term goals, policies and procedures. Broad
range of daily responsibilities included the security,
availability, configuration and maintenance of the network,
servers, desktop computers, laptops, mobiles devices and
corporate software applications; troubleshooting any
computer related problems; and training personnel on
systems usage and best practices. Also, developed and
maintained the company website and ecommerce presence.
Get Functional
Freelance Consultant

02/2000 – 11/2007

Worked with companies to improve business processes
and integrate disparate systems. Developed web sites for
new web based companies and existing companies creating
a presence on the Internet for the first time.
Industrial Metal Fabricators, Inc.
University Cooperative Program
Responsible for maintaining and supporting the company’s
network, computers and software applications. As part of
this responsibility, developed and implemented a network
migration from a Novell coax network to a Windows NT
10-BaseT network by designing the new network, gathering
requirements, purchasing equipment and performing the
migration. Researched, analyzed and coordinated the
migration from an analog phone switch to an ISDN based
phone system. Also developed the company’s first website.

60

09/1995 – 08/1999

COMPUTER TRAINING
Microsoft Certified Systems Administrator (MCSA)
Microsoft Certified Systems Engineer (MCSE)
Cisco Certified Network Associate (CCNA)
Network+ Certification
Cyber Special Agent Career Path Stage III Completed
Unix Intrusion Techniques
Online Covert Employee Certification
Image Scan Training
Dallas Crimes Against Children Conference
A+ Certification
Cyber Special Agent Career Path Stage II Completed
Advanced Network Investigation Techniques – Windows
Basic Innocent Images Training
Intrusion Response
Dallas Crimes Against Children Conference
CART 101 Training
AccessData Boot Camp
P2P Instructor Training

01/2004
01/2004
01/2009
02/2009
03/2009
08/2009
08/2009
02/2010
02/2010
03/2010
03/2010
07/2010
08/2010
09/2010
11/2011
05/2012

INSTRUCTIONAL EXPERIENCE
U.S. Instruction
Bowling Green State University, Bowling Green, OH
Northwest Ohio ISACA Chapter, Bowling Green, OH
FBI VCAC International Taskforce Training, Linthicum, MD
-P2P file share investigative techniques
-On-scene triage techniques
DOJ Project Safe Childhood Conference, Columbia, SC
-Anonymization and encryption
FBI VCAC International Taskforce Training, Alexandria, VA
-Investigating Anonymous Networks

10/2009
01/2011
08/2012

02/2013
08/2014

Overseas Instruction
Romanian Directorate for Combating Organized Crime, Romania
-P2P file share investigative techniques
Italian Postal and Communication Police, Italy
-On-scene triage techniques
Italian Postal and Communication Police, Italy
-Innocent Images Overview and Techniques
-On-scene triage techniques
FBI VCAC International Taskforce Coordination Meeting, Peru

61

06/2011
03/2012
04/2012

06/2012

Dutch National Police Conference, Netherlands
-Bulletin Board and P2P IP analysis
FBI VCAC International Taskforce Coordination
Meeting, Netherlands

04/2013

05/2014

COURTROOM TESTIMONY
United States v. Timothy DeFoggi, District of Nebraska
2014
Testified as an expert witness regarding the following:
-Operation of websites and online bulletin boards
-Computer networking
-Computer forensics
-Forensic artifacts pertaining to the use of websites
-Investigation and analysis of websites and online
communities dedicated to the exploitation
of children
-Methods, tactics and techniques of individuals
seeking to exploit children online
EDUCATION
Georgia Institute of Technology
Bachelor of Science, Computer Science

62

2003

EXHIBIT TO FIRST SAMPLE MOTION TO COMPEL

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division
UNITED STATES OF AMERICA
v.

)
)
)
)
)

Criminal No. 4:16cr16

DECLARATION OF DR. MATTHEW MILLER
I, Matthew Miller, declare under penalty of perjury that:

1.

I am an Assistant Professor of Computer Science and Information

Technology at the University of Nebraska at Kearney. A copy of my CV is attached to
this declaration.

Based on my prior work analyzing FBI “Network Investigative

Techniques,” I have been retained by

’s defense team to speak to the

importance of analyzing all source code used by the FBI in the deployment of a NIT.
2.

The defense in this case previously submitted a declaration of Vlad

Tsyrklevich that was originally drafted and submitted in a related case pending in
Washington, United States v. Michaud.

See ECF No. 37-1.

I have reviewed Mr.

Tsyrklevich’s declaration, I agree with and adopt his analysis, and—given my familiarity
with both the Michaud and Matish cases—I consider Mr. Tsyrklevich’s declaration to be
equally applicable here as it was in Michaud.
3.

As explained in the Tsyrklevich declaration, an NIT has four major

components. Each of these components must be reviewed and verified by the defense for
three basic reasons. First, to ensure that the evidence collected by the NIT is valid and
accurate. Second, to ensure that the FBI’s use of its NIT did not exceed what was
1
63

Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 2 of 9 PageID# 308

authorized in the NIT search warrant, which is an emerging and serious problem with
different types of sophisticated search and seizure technology now used by law
enforcement agencies. Third, to develop potential defenses at trial based on the NIT
having compromised the security settings on Mr. Michaud’s computer and rendering it
vulnerable to a host of viruses and remote attacks that would explain to a jury why a
defendant’s data storage devices may contain child pornography that he or she did not
intentionally download.
4.

As the Court is aware, under normal circumstances the FBI would be able

to target a specific user on the Internet by using their Internet Protocol (IP) address. This
address identifies a user and is allocated to an Internet Service Provider (ISP). The ISP
can identify each of their users and then the FBI can investigate that single user. When
users use Tor, they are “anonymized” such that the FBI cannot readily identify them by
their IP address because that IP address is not transmitted or shared in any retrievable
way. The FBI must use an “exploit” in the software that the user is running on his or her
computer to seize the IP address and other identifying information from that target
computer directly. An exploit is a piece of software that takes advantage of a flaw in a
computer system. Among other components, the FBI has indicated that it will not
produce the exploit that was used in this case. See ECF No. 56, 20 n.65.
5.

A computer system that has been exploited has been fundamentally altered

in some way. This alteration may cause the computer to crash, lose or alter data, not
respond to normal input or it may alter any of the settings on that system.1 Depending
on the exploit, it can affect the security posture of the computer going forward.2
1

C. Smith, Dangerous Windows 10 flaw lets hackers secretly run any app on your PC,
http://bgr.com/2016/04/25/windows-10-applocker-security-issue/, 2016.
2

D. Goodin, New exploit leaves most Macs vulnerable to permanent backdooring,
http://arstechnica.com/security/2015/06/new-remote-exploit-leaves-most-macsvulnerable-to-permanent-backdooring/, 2015.
2
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Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 3 of 9 PageID# 309

6.

Once a computer system’s security has been compromised, the computer is

deemed to have been compromised and vulnerable to attack.
7.

For example, if the security firewall on a computer is disabled by an NIT or

other malware, the firewall cannot prevent unauthorized access to the computer by third
party attackers and remote computers. Remote attacks on computers are commonplace,
with the attackers often automating the process of locating vulnerable computers and
targeting them for viruses, remote transmission or storage of illicit materials, and similar
misuse. These types of remote computer attacks are so pervasive that it is one of the main
reasons that so much time, money and effort is expended by individuals and
organizations (including the federal courts) to protect their computers and computer
networks from malware.
8.

Without knowing what exploit was used by the FBI in this case, we cannot

determine whether the files that the government says were located on the computer were
put there by
9.

.
Moreover, at the suppression hearing in this case, an FBI agent testified for

the first time that the NIT collected different pieces of information from a target
computer in different ways. Specifically, Agent Alfin testified that target’s IP address
may not have been collected and sent back to the FBI in a secure, tamper-proof manner.
This may mean that the IP address relayed to the FBI was unencrypted and subject to
attack by hackers other than the government. The reliability of the information allegedly
transmitted from the target computer to the FBI is a question that I have been asked to
help the defense analyze, but I cannot fully determine or opine on the reliability of the
transmission without having access to the full NIT source code.
10.

I have had first-hand experience dealing with the complex evidentiary

issues that arise when the FBI uses an NIT. I was called upon to analyze a NIT used by
the FBI in the Kirk Cottom case that was litigated in federal court in the District of
3
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Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 4 of 9 PageID# 310

Nebraska in 2013 and 2014 (Case Number CR13-108). Mr. Cottom was a defendant in
the predecessor to “Operation Pacifier” known as “Operation Torpedo.” The Court may
be familiar with the Cottom case already, as it is referenced in the Defendant’s Motion to
Compel Discovery and Exhibit 2 to the same. See ECF No. 37-2.
11.

Mr. Cottom’s defense counsel asked to view the source code that the FBI

had used to create the unique identifiers, encrypt identifiers, the NIT and the data logging
code. The Government agreed to share all of the source code, except for specific code
which the FBI reported to the court that it had lost. The binary code for the NIT was
provided to our team along with the servers that supplied the NIT. The Government also
provided us with access to all of the parts system that was used to deanonymize the users
of the Tor network. Each time the defense team requested more source code, log files or
server code, the Government did not dispute our need to analyze the data and provided us
with access to the requested digital resources.
12.

Having all the source code was key to ensuring (among other things also

outlined in Mr. Tsyrklevitch’s declaration) that the generation of the unique identifiers
used for evidentiary data was correct. With the cooperation of the Government during
discovery in the Cottom case, we were also able to verify that the NIT only sent back the
data that was legally authorized by the search warrant issued in that case, something that
remains unknown in Mr. Michaud’s case and cannot be resolved by reference to the “data
stream” or other fragments of discovery that the FBI is now offering to share.
13.

We were further able to examine in the Cottom case how information was

collected by both the NIT server and by the “deanonymizing” server. Perhaps most
critically for the defense, we were able to determine what the FBI had or had not done to
the security settings on Mr. Cottom’s computer and whether a third party attack was an
issue in the case. In my opinion, the FBI’s unwillingness to produce the same type of
NIT discovery in

’s case is inconsistent with the government’s recognition in
4
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Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 5 of 9 PageID# 311

the Cottom case that the full NIT source code is relevant and indeed necessary for
to prepare his defense.

DONE this 23rd day of May, 2016.

_________________________________
Matthew Miller

5
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Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 6 of 9 PageID# 312

Dr. Matthew James Miller
University of Nebraska at Kearney
Department of Computer Science and Information Systems
Otto Olsen, Room 116E
Kearney, NE USA 68845
Telephone: 308-865-8824

Cell Phone:
Email:

(785) 410-3526
millermj@unk.edu

Education
Ph.D. Computer Science, Kansas State University, 2012.
M.S. Computer Science, Kansas State University, 2007.
B.S. Computer Science, University of Nebraska at Kearney, 2003.

Employment
Assistant Professor: University Nebraska at Kearney

2015–Present

◦ Courses taught
- Introduction to programming CSIT-130
- Computer Organization CSIT-301
- Operating Systems CSIT-401
- Software Engineering CSIT-404
- Computer Security CSIT-458
- Reverse Engineering CSIT-499
◦ Student projects
◦ Developing a secure medical application for viewing Continuity of Care Documents
Consultant: Milhous Ink, LLC. Independant Contractor

2014–Present

◦ Reverse Engineering a flash based Network Investigation Technique (NIT) developed by the
FBI for de-anonymizing TOR end nodes Case Number 8:13-cr-00108-JFB-TDT Doc # 227-1
https://s3.amazonaws.com/s3.documentcloud.org/documents/2124281/fbi-tor-busting-2271.pdf
Training/Certificates:
◦ Red Team Hunting DakotaCon 2016
◦ Advanced Penetration Testing DakotaCon 2015
◦ Advanced Reverse Engineering Black Hat Las Vegas 2014
◦ Malware Analysis DakotaCon 2014
Assistant Professor: Dakota State University

◦ Courses taught with Online sections
- Introduction to programming I CSC-150
- Introduction to programming II CSC-250
- Object Oriented Design CSC-260
- Assembly CSC-314

68

2012–2015

Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 7 of 9 PageID# 313

Dr. Matthew James Miller

-

2

Reverse Engineering CSC-444
Operating Systems CSC-456
Android Development CSC-492
Algorithm Analysis CSC-705
Advanced Reverse Engineering for Ph.D. students CSC-844

◦ Service at Dakota State University
- Served as the Vice-president of General Faculty
- Helped develop the Applied Computer Science masters program
- Created a local programming contest
- Increased attendance of our ACM programming contest from 3 teams to 7 teams
- Taught at a 2 Coed Cybersecurity camp for high school students
- Taught at a 1 Girls Cybersecurity camp for high school students
- Worked on the Red-Team at the North Central CCDC Competition
◦ Student Research Projects at Dakota State University
- Created parallel password cracking software; abstract accepted at NCUR
- Developed a method of detecting and mitigating ROP attacks in software
- Developed Android applications for members of the community
◦ Advising 50+ students per semester about Computer Science and Cybersecurity
Programmer: The Onyx Collection

2007–2013

◦ Created an online ordering system that handles $1+ million in sales per month
◦ Developed software to manage electronic order forms, electronic catalogs, product entry and
product assembly
◦ Created an open source library for java to database interaction
NSF GK-12 Fellow: Kanas State University

2010–2012

◦ Developed lessons for high school students that integrate sensory technology into the classroom
- Sensors included Wiimotes, Android phones, Lego MindStorms, Lego NXT, Wii Balance board, GPS Devices, Kinect and Cameras
◦ Taught lessons for Physical Education and Enhanced Learning Education
◦ Participated in outreach for other areas of Kansas (Dodge City, Wamego, Rock Creek)
Writer: The Master Teacher

2010–2012

◦ Developed and wrote lesson plans for educators that explains classroom technology integration
- Topics included programming using OpenGL, Wiimotes in weightlifting, photography and Android application development
ESSI outreach program speaker: Kanas State University

2008–2012

◦ Introduced middle school students to robotics and the use of computer science in society
EXCITE outreach program: Kansas State University

2005–2012

◦ Developed curriculum for introducing female high school students to programming and
robotics

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Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 8 of 9 PageID# 314

Dr. Matthew James Miller

3

◦ Coordinated, managed and taught the program to the high school students
Research Assistant: Kansas State University

2006–2008

◦ Researched porting of shell scripts for SANDIA Turbo SIP from Linux to Windows
◦ Developed a distributed software system for the estimation of impact of irrigation on the
Great Plains Aquifer in western Kansas
◦ Researched and developed an installer for porting the SANDIA Turbo SIP from Linux to OS
X Leopard
◦ Developed a system for model checking the GMoDS goal model
Teaching Assistant: Kansas State University

2004–2006, 2008-2010

◦ Developed curriculum and taught computer science class for non-programmers (CIS 111)
◦ Taught the lab portion for the Introduction to Computer Science class (CIS 200)
◦ Acted as a Teaching Assistant for the Computers and Society (ethics) class (CIS 415)
◦ Acted as a Teaching Assistant for the Concurrent Programming class (CIS 625)
Teacher for the Research Experience for Teachers (RET): Kansas State University

2004–2005

◦ Taught curriculum to high school teachers that involved both hardware and software
Adjunct Instructor: University of Nebraska at Kearney

Fall 2003

◦ Taught 1 section of CS-130

Course development at Dakota State University
◦ I redeveloped the assembly language class (CSC-314) to use an open source assemble that can
be used for free on a linux server. The course was developed to lead directly into the reverse
engineering course.
◦ I developed the reverse engineering course (CSC-444). This course is designed to meet the rigorous
standards provided by the NSA. This course is key to the Center of Excellence designation that has
been awarded to DSU.
◦ I developed the graduate reverse engineering course (CSC-844). This course is designed as the
foundation for the PHD in Cybersecurity.

Works in Progress
Shadow Return a ROP Mitigation tool.
Analysis of FBI Network Investigative Tools

Publications
Tom Bulatewicz, Daniel Andresen, Stephen Welcha, Wei Jina, Sanjoy Dasb, and Matthew Miller. A software
system for scalable parameter estimation on clusters. In Proceedings of the 8th LCI International Conference
on High-Performance Clustered Computing, 2007.

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Case 2:16-cr-00092-RBS-RJK Document 16-3 Filed 07/29/16 Page 9 of 9 PageID# 315

Dr. Matthew James Miller

4

Tom Bulatewicz, W Jin, S Staggenborg, S Lauwo, M Miller, S Das, D Andresen, J Peterson, David R
Steward, and SM Welch. Calibration of a crop model to irrigated water use using a genetic algorithm.
Hydrology and Earth System Sciences, 13(8):1467–1483, 2009.
Scott A DeLoach and Matthew Miller. A goal model for adaptive complex systems. International Journal of
Computational Intelligence: Theory and Practice, 5(2):83–92, 2010.

71

GOVERNMENT'S OPPOSITION TO FIRST SAMPLE MOTION TO COMPEL

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
UNITED STATES OF AMERICA

)
)
)
)
)
)
)

v.
,
Defendant.

CRIMINAL NO. 2:16cr92

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO COMPEL
Now comes the United States of America, by and through attorneys, Dana J. Boente,
United States Attorney for the Eastern District of Virginia, and Elizabeth M. Yusi, Assistant
United States Attorney, and submits its response in opposition to the defendant
’s Motion to Compel Discovery. For the reasons set forth below, the defendant’s
motion should be denied.
INTRODUCTION
Defendant

(“the defendant”) is charged in this case with receipt of

child pornography. The charges arise from an investigation into Playpen, a website through
which registered users like the defendant regularly accessed illegal child pornography. That
website operated on the Tor network. This network allows its users to mask their Internet
Protocol (“IP”) addresses, which—absent such concealment—ordinarily can be used to
identifying website users. The Tor network operates to conceal this information by bouncing
user communications around a network of computers before transmitting such communications
to their ultimate destination. The defendant’s IP address was discovered through the courtauthorized use of Network Investigative Technique (“NIT”). Pursuant to a search warrant
authorized in this District, Playpen’s content—which was hosted on a computer server located

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Case 2:16-cr-00092-RBS-RJK Document 21 Filed 08/12/16 Page 2 of 31 PageID# 888

within the district—was augmented with additional computer instructions comprising the NIT
while the website briefly operated under government control.1
The defendant seeks disclosure of what he generally describes as the “source code or
programming code for the NIT” and “the unique identifier generator” used to identify his
computer. Def.’s Mot. to Compel Disc. at 1. Defendant does not meet the Fourth Circuit
standard for materiality and incorrectly relies on the Ninth Circuit standard in his materiality
claim. Moreover, even if the Court were to find that disclosure of the NIT programming code
was material to his defense, that information is protected by a qualified law enforcement
privilege. Accordingly, this Court should deny the defendant’s motion.2
BACKGROUND
I. Procedural History
On June 22, 2016, a federal grand jury sitting in Norfolk returned a five-count indictment
charging the defendant with four counts of receipt of child pornography, in violation of 18
U.S.C. § 2252(a)(2), and one count of possession of child pornography, in violation of 18 U.S.C.
§ 2252(a)(4). At his arraignment, the Court set a preliminary motions deadline of July 29, 2016,
and a trial date of October 18, 2016.

1

Further detail about the website, investigation, and NIT is contained in the government’s
Response to the Defendant’s First Motion to Suppress and exhibits thereto (ECF 19). Such
information is incorporated here by reference.
2

Just as with defendant’s First and Second Motions to Suppress, defendant’s motion contains
the identical factual and legal arguments as those contained in Motions to Compel filed in this
Court in other related cases. See United States v. Matish, 4:16cr16 (J. Morgan), United States v.
Darby, 2:16cr36 (J. Doumar), and United States v. Eure, 2:16cr43 (J. Doumar). In each of these
cases, the court conducted evidentiary hearings. Both Judge Doumar and Judge Morgan issued
lengthy opinions denying the defendants’ motions to compel. See United States v. Matish, --F.Supp.3d ---, 2016 WL 3545776 (attached as Exhibit A). Attached as Exhibit B is the court
order in the Eure and Darby cases. Attached as Exhibits C and D are transcripts of the
evidentiary hearings in Matish and Darby/Eure.
2
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II. Discovery Requests and the government’s Responses
On July 1, 2016, the parties entered an agreed discovery order. ECF 11. The government
provided discovery pursuant to that order. Among the items included in that disclosure were
materials pertaining to the investigation such as investigative reports and forensic report
regarding the defendant’s digital devices. On July 29, 2016, defense counsel requested by letter
additional discovery items related to information related to Playpen and its users and disclosure
of the NIT source code. Ex. E (letter from A. Conner to E. Yusi dated July 29, 2016). That
same day, government responded. Ex. F (letter from E. Yusi to A. Conner dated July 29, 2016).
Regarding the defendant’s request for discovery, the government advised that the
information sought did not consist of evidence the government intended to use in its case-inchief at trial and that such information had not been obtained from and did not belong to the
defendant. Ex. F. The government further advised that it did not believe—and the defendant
had failed to indicate why—that information was material to his defense. Id. The government
also advised that the investigative technique is subject to law enforcement privilege, which the
government asserted. Id. The government noted that the information collected through the use
of the court-authorized NIT is available for counsel’s review and would remain available for
further review during the pendency of the litigation. Id. The government also offered to provide
the defendant a copy of that information subject to the entry of a protective order. Id.
Additionally, regarding the NIT results, the government explained that only a limited set
of information was collected through court-authorized use of the NIT; specifically, the
information described in Attachment B of the warrant authorizing the deployment of the NIT, as
reflected in the user report that has been provided to counsel. The government clarified that
other information about user activity, such as the pages and postings accessed, had been

3
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Case 2:16-cr-00092-RBS-RJK Document 21 Filed 08/12/16 Page 4 of 31 PageID# 890

collected through request data and website logs that were not a function of the NIT. Id. In this
response, the government offered to make additional information available to the defendant,
including an offline copy of Playpen that would enable the defense team to navigate through
pages of the website as a user could when the website was online. Id.
LAW AND ARGUMENT
Defendant has not shown why the information he seeks is material to either his pretrial
motions or to his defense. Moreover, the information that the defendant seeks to compel is
subject to a qualified law enforcement privilege.
I.

The Defendant has Failed to Show that the NIT Programming Code is Material to his
Defense
Under Federal Rule of Criminal Procedure 16, a criminal defendant has a right to inspect

documents, data, or tangible items within the government’s “possession, custody, or control,”
that are “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E). “[I]n the context of
Rule 16, ‘the defendant’s defense’ means the defendant’s response to the government’s case in
chief.” United States v. Armstrong, 517 U.S. 456, 462 (1996). “[E]vidence is material as long as
there is a strong indication that it will play an important role in uncovering admissible evidence,
aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.”
United States v. Caro, 597 F.3d 608, 621 (4th Cir. 2010) (quoting United States v. Lloyd, 992
F.2d 348, 351 (D.C. Cir. 1993)).
The defendant bears the burden of showing that information sought under Rule 16
“would . . . actually help[] prove his defense.” Id. To show materiality under Rule 16 “[t]here
must be some indication that the pretrial disclosure of the disputed evidence would have enabled
the defendant to significantly alter the quantum of proof in his favor.” Id. (quoting United
States v. Ross, 511 F.2d 757, 763 (5th Cir. 1975), cert. denied 423 U.S. 836). A defendant
4
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Case 2:16-cr-00092-RBS-RJK Document 21 Filed 08/12/16 Page 5 of 31 PageID# 891

cannot meet this burden through “general description[s] of the information sought” nor through
“conclusory allegations of materiality.” Id. (quoting United States v. Mandel, 914 F.2d 1215,
1219 (9th Cir. 1990)). In fact, “[w]ithout a factual showing there is no basis upon which the
court may exercise its discretion, and for it to ignore the requirement is to abuse its discretion.”
Mandel, 914 F.2d at 1219. “[O]rdering production by the government without any preliminary
showing of materiality is inconsistent with Rule 16.” Id. Moreover, Rule 16 does not authorize
a defendant to embark on a fishing expedition, which is exactly what the defense requests
amounts to. See United States v. White, 450 F.2d 264, 268 (5th Cir. 1971); United States v.
Rigmaiden, 844 F. Supp. 2d 982, 1002 (D. Ariz. 2012); United States v. Delacruz, No. Case 14
Cr. 815 (KBF), 2015 WL 2211943, at *1 (S.D.N.Y. May 12, 2015) (“Rule 16 does ‘not entitle a
criminal defendant to a ‘broad and blind fishing expedition among [items] possessed by the
government on the chance that something impeaching might turn up.’” (quoting United States v.
Larranga Lopez, No. 05 Cr. 655 (SLT), 2006 WL 1307963, at *8 (E.D.N.Y. May 11, 2006)
(alteration in original)); United States v. Sandoval, No. CR 04-2362 JB, 2006 WL 4079018, at *2
(D. N.M. Jun. 8, 2006) (finding that information a defendant sought was “not material under rule
16, but rather appear[ed] to be an attempt at a fishing expedition to find material that might lead
to some cross-examination at trial”).
Brady v. Maryland, 373 U.S. 83 (1963), requires that under the Due Process Clause, the
government shall disclose “evidence favorable to an accused upon request…where the evidence
is material either to guilt or to punishment. Caro, 597 F.3d at 619. Materiality depends on a
“reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Id. In the Fourth Circuit, a reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. Brady is not in place to be used as a

5
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Case 2:16-cr-00092-RBS-RJK Document 21 Filed 08/12/16 Page 6 of 31 PageID# 892

discovery device. Id. When a defendant can only guess as to what requested materials may
expose, it does not satisfy Brady’s requirement that the evidence be favorable to the defendant.
Id. To determine materiality, a court must determine if the evidence withheld from the defense
“reasonably could be considered as placing the entire case in such a different light that
confidence in the verdict is undermined.” Waters v. Clarke, 2012 U.S. Dist. LEXIS 140762 *17
(E.D.Va. 2012).
The defendant seeks a copy of the NIT programming code for three stated reasons: (1)
“so that [his] computer forensics expert can independently determine the full extent of the
information the government seized from [his] computer when it deployed the NIT,” (2) “whether
the NIT interfered with or compromised any data or computer functions,” and (3) “whether the
government’s representations about how the NIT works are complete and accurate.” Def.’s Mot.
to Compel at 1. He contends that the information is relevant to his First and Second Motions to
Suppress, yet does not explain why the discovery he seeks will help him answer any of the
questions he claims, in those motions and the instant motion, must be answered. Id. He presents
no factual information whatsoever in support of his speculative assertions and fails to show
materiality regarding any of the specified reasons for the seeking the requested information.
Indeed, the information sought by the instant motion is not relevant to any of the suppression

6
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motions currently pending before the Court.3 The latter motions challenge the sufficiency and
legality of the search warrant.
For all of the reasons set forth below, the defendant has also failed to show the
materiality to his defense of the information he seeks. Accordingly, to the extent the Court
excuses the defendant’s failure to timely file the instant motion, it should nevertheless deny it.
A. The defense does not accurately apply the materiality standard for the purposes
of Fed. R. Crim. P. 16.
interpretation of the materiality standard is broad and incorrect in light of
Fourth Circuit precedent. As noted above, the Fourth Circuit’s standard for materiality is that,
“evidence is material as long as there is a strong indication that it will play an important role in
uncovering admissible evidence, aiding witness preparation, corroborating testimony, or
assisting impeachment or rebuttal.” Caro, 597 F.3d at 621. However,

directs the

court’s attention to a similar case currently being litigated in the United States District Court for
the Western District of Washington at Tacoma, where the judge found that the defense had
shown that the NIT source code was material to preparing the defense. Def. Mot. to Compel
Disc. pp. 3-4. In the Ninth Circuit, evidence is “material” under Rule 16 if it is helpful to the
development of a possible defense. United States v. Olano, 62 F.3d 1180, 1203 (9th Cir. 1995).
A defendant must make a “threshold showing of materiality” in order to compel discovery
pursuant to Rule 16(a)(1)(E). United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995).

3

The defendant filed two motions to suppress challenge the sufficiency and legality of the
search warrant (and in a very limited sense, the execution of the warrant). This latter question
concerns only whether the triggering condition—logging in to Playpen—occurred. Neither of
the defendant’s motions challenge the extent of the information identified by the NIT or the
NIT’s technical aspects, operation, or functionality—either generally or with respect to the
defendant, specifically. Accordingly, the NIT source code and an independent forensic analysis
of the same are neither relevant nor necessary to the Court’s determination of the pending
motions.
7
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“Neither a general description of the information sought nor conclusory allegations of materiality
suffice; a defendant must present facts which would tend to show that the government is in
possession of information helpful to the defense.” United States v. Mandel, 914 F.2d 1215, 1219
(9th Cir. 1990).
Although the defense asserts that the Michaud court clearly found materiality, the
different standards between the circuits warrant a different outcome in

’s case.4 The

Fourth Circuit’s requirement that there is a “strong indication that [the material] will play an
important role” in the defense is narrower than the Ninth Circuit’s condition that the defendant
show a “possible defense.” For the reasons stated above,

is initiating a fishing

expedition in which he seeks to obtain information that he either already has through the
computer instructions or has alternative means of obtaining on his own. While this may satisfy
the “possible defense” standard in the Ninth Circuit, the information already made available to
him during discovery clearly precludes him from arguing that the entire NIT source code is
material in the Fourth Circuit.
’s reliance on the case out of the Ninth Circuit is flawed because the standard
is different in the Fourth Circuit. The materiality standard to be applied in his case does not
encompass anything that might help his defense. As discussed infra, the defendant has not
shown a strong indication that the evidence will play an important role in finding evidence,
helping witnesses, corroborating testimony, or aiding in impeachment or rebuttal.
4

Following a government motion to reconsider its discovery order in Michaud and review of ex
parte, in camera materials submitted by the government, that court determined that the
government was not required to turn over the further information pertaining to the NIT that
now requests. United States v. Jay Michaud, No. 15-cr-5351, ECF 205 (W.D. Wa.
May 18, 2016). That court did not reconsider its finding of materiality, however, and later
entered an order excluding the NIT evidence and its fruits. Id., ECF 212. However, that
decision is being appealed by the government to the Ninth Circuit Court of Appeals. Id., ECF
213.
8
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B. Additional discovery to what the government has already provided will not
shed light on the accuracy of the identifying data that connects
to
both the “Slutwhore” account and specific activity on the Playpen website.
contends that, pursuant to Rule 16, he is entitled to the NIT source code
because such information may reveal the accuracy of the data the government used to identify
on the Playpen Website. For

to obtain such information, he would have

to show that disclosure would “alter the quantum of proof in his favor.” See Caro, 597 F.3d 608,
621. In other words,

bears the burden of showing that the information he seeks will

raise doubt that the NIT accurately identified him as the individual accessing and downloading
child pornography. The government will provide

with the computer instructions that

generated the identifying data, and the identifying data, additional requests fall outside the scope
of appropriate discovery outlined in Brady. 5 See id. (citing Brady and stating that materiality
depends on whether the result of the proceeding would be different after disclosing the
information to the defendant); see also White, 450 F.2d at 268 (deeming requests outside the
scope of appropriate discovery as prohibited fishing expeditions). Therefore, additional
discovery requests regarding the government’s chain of custody of the NIT are cumulative and
unnecessary.
5

In Michaud, the defense similarly moved to compel production of the NIT programming code
and the government opposed disclosure, as it does here. Prior to the hearing on that motion, the
government offered—without conceding any obligation to do so—to make available for review
at an FBI facility, the instructions sent to and executed on Michaud’s computer, which produced
the NIT results. See Gov’t Resp. to Def.’s Mot. to Compel at 4, Michaud, 3:15cr05351, ECF 134
(W.D. Wash. Jan. 21, 2016). The defense agreed and information was provided to the defense
pursuant to a protective order, including a copy of the computer instructions sent to Michaud’s
computer that, when executed, produced the NIT results, the NIT results themselves, the date and
time the NIT was executed on Michaud’s computer, and the Playpen thread that Michaud was
accessing when the NIT was executed. Id. at 1, 4. Without conceding any obligation to do the
same in light of the defendant’s untimely request and his similar failure to show materiality, the
government is willing to make the same information available to the defendant in this case. The
government strenuously opposes disclosure of any additional information described in
Tsyrklevich and Miller’s declaration, as it has consistently done in Michaud.
9
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First,

’s fundamental misunderstanding of the NIT’s basic structure

misinforms his perception of how the NIT processed and transmitted the data that identified him
as a Playpen user. Relying on both the Tsyrklevich and Miller declarations,

asserts

that the NIT is comprised of four components, all of which he claims are necessary to determine
the accuracy of the identifying information. See Decl. of Dr. Matthew Miller (hereinafter,
“Miller Decl.”) ¶ 3. Of the alleged four components, he claims there is an “exploit,” a
“payload,” software that generates the payload and injects a unique identifier into it, and a server
that stores the delivered information. See Decl. of Tsyrklevich (hereinafter, “Tsyrklevich Decl.”)
¶ 4. In reality, the NIT is one component, which is the computer instructions delivered to
’s computer that gathered his identifying information after he logged into the Playpen
website. Ex. G, Decl. of Special Agent Daniel Alfin(hereinafter, “Alfin Decl.”) ¶ 56. As noted
before, those instructions, and the information obtained via their execution, will be made
available for review. Id.
Particularly,

seeks disclosure of the “exploit” in order to determine whether

the government “executed additional functions outside the scope of the NIT warrant.”
Tsyrklevich Decl. p. 3. However, even assuming that the NIT does have multiple components,
the “exploit” is not relevant to anything found in the warrant; it would only show how the NIT
was deployed to

’s computer, not what it did once it began interacting with his

computer. Alfin Decl. ¶ 12. Furthermore, the defense’s contention that the “exploit” could have
made changes to

’s computer is purely theoretical. Alfin Decl. ¶ 14. While it is

possible for some exploits to do so, the NIT in question and the exploit it used to deliver

6

While Special Agent Alfin’s declaration was originally drafted for the related case, United
States v. Matish, 4:16cr16, before Senior United States District Judge Henry Coke Morgan, the
same information applies in this case.
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computer instructions did not do so. Id. The defense experts point to no evidence that the NIT
initiated any changes to

’s computer system or security firewall that would warrant

concern that the identifiers misidentified

as a Playpen user. Id. To alleviate

’s concerns about the “exploit,” the government will offer to allow the defense to
review the two-way network data stream transmitted to the FBI from

’s computer

after the NIT’s deployment. Alfin Decl. ¶ 15. Reviewing the data stream would show the
defense that the data sent from

’s computer is identical to the data the government

provided as part of discovery. Alfin Decl. ¶ 16.
Additionally,

requests the “server component,” but this is unnecessary

because there are alternative means of verifying the accuracy of the NIT information. Alfin
Decl. ¶ 18. The government agrees to provide a copy of the data stream sent by

’s

computer to the government as a result of the NIT, so defense experts do not need to access
government servers at all. Alfin Decl. ¶ 19. Once the copy is provided to the defense, the
defense expert can compare the information sent to the government by the NIT to the
information provided in discovery to determine whether the material the government recorded
from

’s computer is in fact what was sent by

’s computer. Id. The

government has confirmed that the information sent to the government from

’s

computer is exactly what the government will disclose in discovery as obtained by the NIT. Id.
Lastly,

demands the computer code that “generates the payload and injects an

identifier” in order to contest the legitimacy and uniqueness of the identifier used to find him.
Tsyrklevich Decl. p. 3. However, this is unnecessary information because a unique identifier is
incorporated into the NIT upon each deployment. When the user’s computer activates the NIT
and sends information to the government, the unique identifier accompanies the information.

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Alfin Decl. ¶ 26.

s speculation concerning the existence of duplicate unique

identifiers and the accuracy of the NIT information is unfounded, because all identifiers received
by the government matched those that the government generated without any duplicates. Alfin
Decl. ¶ 26. In fact, a review of the FBI database containing the information gathered by the NIT
revealed that: (1) there are no duplicate unique identifiers within the database, so each identifier
assigned to each Playpen user was unique, (2) the identifier associated with “Slutwhore” was
unique, and (3) only identifiers generated by the NIT were in the database, which means that no
outside entity tampered with the identifiers used in the Playpen investigation. Alfin Decl. ¶ 27.
The defendant has not proven that disclosure would alter the quantum of proof in his
favor and therefore has not proven that any further information is material to his defense. The
information he seeks will not raise any suspicion that the NIT did not accurately identify him as
the person accessing child pornography. The government will provide the defendant with
identifying data and everything he needs to answer his questions regarding accuracy and
identification. Additional discovery requests do not assist him in his pursuit of these questions,
and therefore his motion to compel should be denied.
B. The requested discovery also has no bearing on
’s claim that someone
or something else may have been responsible for the downloading of child
pornography on his device.
’s expert Miller speculates about the possibility that the NIT disabled
’s computer security, and, accordingly, argues the possibility that the NIT may have
opened the door for other entities to download illicit material onto his computer without his
knowledge. Miller Decl. ¶¶ 6-8. To obtain the source code and subsequently present to the jury
that the child pornography came from some other source,

must show that the

requested discovery holds a “reasonable probability that, had the evidence been disclosed to the

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defense, the result of the proceeding would have been different.” Caro, 597 F.3d at 619. This
would be a difficult argument considering
pornography. And, if

’s confession to collecting child

is only guessing as to what the materials may provide, then

Brady’s requirement that the material must be favorable to the defendant is not satisfied. Id. at
619. In

’s case, the entire source code is not material to his defense because the

evidence does not indicate the possibility that

unknowingly obtained child

pornography.
To be malware, a software or computer program must set out to make “malicious”
changes to a computer’s security settings or systems. The NIT did not deploy any program that
would have made changes to

’s computer; it merely interacted with his computer to

obtain the information that traced him to the “Slutwhore” account. Alfin Decl. ¶ 6. Further,
after the NIT sent instructions to

’s computer, it ceased interaction and left no residual

openings that would allow the government to return for further access to that computer. Alfin
Decl. ¶ 8. Outside of pure speculation regarding a theoretical possibility,

points to no

facts to suggest otherwise.
Should the defense decide to further inquire about any potential malware that could have
been left on

’s computer, his devices are available for review. Alfin Decl. ¶ 35.

However, the defense has declined to review the network data, which would be a valuable tool
for searching for malware. Alfin Decl. ¶ 32. Alternative to inspecting the source code itself,
there are other ways to find malware on a device that would help the defense identify other
malware that may have led to the unintentional downloading of child pornography. Alfin Decl. ¶
33 and 34. For example, an investigator may find all files and programs with unknown purpose
and find its function to determine whether they are malware. Alfin Decl. ¶ 33. Additionally, the

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investigator can conduct a dynamic analysis on devices suspected of containing malware by
creating copies of all suspect files and executing them in test environments to determine their
functions. Alfin Decl. ¶ 34.

’s devices, as available to the defense, are appropriate

subjects for both malware-testing techniques described above. Alfin Decl. ¶ 35. Therefore, the
defense does not need the source code to determine whether malware was responsible for the
collection of child pornography found on

’s computer rather than

himself.

The defendant has not shown that the discovery he requests holds a reasonable
probability that if it were to be disclosed, the results of the proceeding would be different.
only speculates so to what the materials might reveal, and thus Brady’s requirement
that the material in fact be favorable to him is not satisfied. Because the defendant has not met
the requirements for further discovery, his motion to compel should be denied.
C. The extent of the information seized from the defendant’s computer
As explained in the NIT search warrant affidavit and as the government has disclosed, the
NIT programming code consists of computer instructions that caused a user’s activating
computer to deliver certain authorized information to a computer controlled by the government.
E.g., Gov’t Resp. to Def.’s First Mot. to Supp., Ex. I at 24-26, ¶¶ 33-34. Review of the
programming code is unnecessary to determine the extent of information seized from the
defendant’s computer by operation of the NIT because the information collected by the NIT is
available to the defense, and that information answers this question. It includes the defendant’s
IP address, a unique identifier generated by the NIT to distinguish the data from other computers,
information about whether the NIT had already been delivered to the computer, and the
computer’s operating system, “Host Name,” active operating system username, and Media
Access Control (“MAC”) address. That information is contained in the “user report” available to

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the defendant, should the defendant contact the government to view the information as offered in
the government’s letter. Ex. F. The collection of all such information was authorized by the NIT
warrant.
The defendant fails to provide any factual support regarding what other information he
suggests might have been collected through the NIT, let alone other information that was
collected.7 Indeed, the defendant has not even asked the government whether any information
was collected by the NIT beyond that described in the warrant and reflected in the user report.
The answer is no. Regardless, even if the NIT had collected further information, only that
information could be subject to suppression as outside the scope of the warrant—not the
information specifically authorized by that warrant. Because, however, there is no such further
information, there is nothing to suppress and no compelling need for an expert to independently
determine the information obtained via the NIT.
The defendant also fails to provide any information to this Court to meet his burden of
showing why or how review of the programming code, as opposed to reviewing the information
collected by the NIT (or other information the government could provide) would answer any
7

Nothing in the defendant’s motion or the witness declarations he attaches claims, for example,
that the computer instructions would have collected information other than what the government
disclosed they did. Nor does he even identify what supposed other information might have been
collected. Rather, the declaration’s author posits, after having reviewed the computer
instructions comprising the NIT, “whether the payload that has been provided was the only
payload associated with the NIT or whether other payloads were executed” and claims that he
needs to analyze and understand additional information to determine whether the information
provided in discovery “was the only component executing and reporting information to the
government” and/or “whether [that additional information] executed additional functions outside
the scope of the NIT warrant.” Tsyrklevich Decl. at 3. This speculation is wholly irrelevant to
the matter at hand. The results provided to the defendant consist of the only information
collected by the NIT. Even if some unspecified additional information had been collected by the
NIT (or some other set of computer instructions), the defendant does not claim that this
unspecified information bears on this case. Nor could he, because the only NIT information
relied on by the government in the warrant for the defendant’s home and that it may rely on at
trial is that which has already been disclosed.
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question about what information the NIT collected. Indeed, the defendant has not asked for any
information related to the use of the NIT and the information it collected, beyond that already
offered by the government, which might have enabled him to assess the questions he now claims
compel production of the NIT programming code. Accordingly, he fails to show how review of
the programming code would reveal the full extent of the information the government seized
from

’s computer – particularly in light of the fact that the information collected by

the NIT has already been disclosed. The defendant therefore fails to make any showing of
materiality or to present facts that tend to show the government is in possession of information
helpful to the defense.
D. Whether the NIT interfered with or compromised any data or computer
functions
Review of the programming code is also not material for the purpose of determining
whether the NIT interfered with or compromised any data or computer functions. The defendant
presents no information to support this wholly speculative hypothesis. Nor can he. The
defendant has not made any discovery requests for information concerning the operation of the
NIT beyond the information already offered by the government, other than his request for the
NIT programming code and the NIT results. In the instant motion, he fails to provide any
information regarding what he means by “interfer[ing] with or compromis[ing] any data or
computer functions.” Def.’s Mot. to Compel Disc. at 1. He also does not explain how, if such
interfering with or compromise of data or computer functions did occur—and it did not—this
fact would lead to suppression of any evidence, since the only evidence “seized” was authorized
by the warrant. Nor has the defendant made any showing of how review of the programming
code would provide information to support an argument for some other sort of relief if the NIT
did interfere with or compromise any data or computer functions. Finally, he has not shown the
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impact of any such interference or compromise on any defense to the charges pending against
him. Indeed, he cannot do so, because, as the government has disclosed, the conduct on which
the indictment is based relates to the defendant’s activities on the Internet that were discovered
on the defendant’s computer media found at his residence (and that he confessed to during an
interview with law enforcement).
Critically, the defendant has ongoing access to the forensic examination conducted of his
computer and other digital devices seized. He has also been provided with substantial
information pertaining to his dates of access to the pertinent website, and the date and time at
which the NIT identified his IP address accessing the site. Despite having that information, he
presents nothing to this Court from any examination of his devices to support his rank
speculation that the NIT could have interfered with or compromised any data or computer
functions, let alone that it did. Nor has the defendant ever asked to perform an independent
forensic examination of his computer or other digital devices. Absent some indication—based in
fact as opposed to speculation and conjecture—that the NIT interfered with or compromised any
data or computer functions—something the government disputes occurred—the defendant fails
to present any facts tending to show that the government possesses information that “would . . .
actually help[] prove his defense.” Caro, 597 F.3d at 621.
E. Whether the government’s representations about how the NIT works in its
warrant applications were complete and accurate
Review of the programming code is also not material for the purpose of determining
whether representations about how the NIT works are complete and accurate. By its nature, this
is an entirely speculative request that any defendant could make, at any time, in any case, in an
effort to justify any request for information from the government. The defendant presents no
facts to suggest that the government is in possession of any information helpful to the defense on
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that issue. Nor does he even claim that the NIT worked other than as described, just that he
needs to verify that its actual operation comported with that description. Such rank speculation
cannot support a finding of materiality. Id. In fact, this sort of speculative request turns the
criminal discovery process on its head. If the standard for obtaining criminal discovery were,
“What if the government’s representations were not correct or complete,” then there would be no
limitation to criminal discovery and every defendant would be entitled to fish through every
scrap of information in the government’s possession in order to look for something that might
impeach a government representation. That is inconsistent with the disclosure requirements
established by Rule 16, Brady, and Giglio.
With respect, specifically, to the descriptions of the NIT set forth in the search warrant
affidavit,8 the defendant has not identified any facts to suggest that those descriptions, in
particular, are incomplete or inaccurate, despite having received substantial information
pertaining to the use and execution of the NIT warrant on his computer, specifically—including
exactly where on the website he was (a posting thread in the kinky fetish – zoo subforum) when
he received the NIT. He also has access to the forensic examination of the devices seized from
his home and has not requested to conduct any independent examination of those devices. Even
having all of this, the best the defendant can do is hypothesize that the NIT could have worked
other than as described. He cannot even muster an explanation as to what, if any, description of
the NIT he is unable to test. A defendant can always allege, absent factual support, that it is
arguably possible that the government did not include complete and accurate information in a
8

In describing how the NIT would operate, the NIT affidavit explained that when a user’s
computer accessed Playpen and downloaded its content in order to display web pages on the
user’s computer, that content would be augmented with additional computer instructions (which
comprised the NIT) that, once downloaded to a user’s computer would cause the user’s computer
to transmit the information specified in the warrant. Gov’t Resp. to Def.’s First Mot. to Supp.,
Ex. I, at 24, ¶ 33.
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search warrant. A mere allegation simply will not supply a basis for seeking to rummage
through the government’s files. See Caro, 597 F.3d at 621. Indeed, “[w]ithout a factual showing
there is no basis upon which the court may exercise its discretion” to require discovery on this
point, and for the Court to ignore that requirement, as the defendant wishes it to do, “is to abuse
its discretion.” Mandel, 914 F.2d at 1219.
The defendant makes no showing as to how the NIT programming code, as opposed to
other information that has been or could be made available, would actually further his defense.
Rather he merely speculates that such a review might produce information that could impeach
the NIT warrant or testimony concerning the process by which he was identified. “Mere
speculation that Brady material exists does not justify fishing expeditions in government files.”
United States v. Paulino, 1996 U.S. App. LEXIS 30032, at *4 (4th Cir. Nov. 20, 2006); see also
United States v. Crowell, 586 F.2d 1020, 1029 (4th Cir. 1978); United States v. Brown, 360 F.3d
828, 833 (8th Cir. 2004) (“[M]ere speculation that materials may contain exculpatory evidence is
not . . . sufficient to sustain a Brady claim); United States v. American Radiator & Standard
Sanitary Corp., 433 F.2d 174, 202 (3d Cir. 1970) (“[A]ppellants’ mere speculation about
materials in the government’s files [does not require] the district court or this court under Brady
to make the materials available for their inspection.”). Absent the required factual showing, the
defendant’s request amounts to nothing more than a fishing expedition, which is not sanctioned
by Rule 16 or any other law.
The defendant contends that the government’s disclosure of information in other cases is
relevant to the inquiry in this case. First, the defendant points to one related case in which a
court initially ordered the government to disclose information related to the NIT programming
code. Def.’s Mot. to Compel Disc. at 3 (citing Order Granting Third Mot. to Compel Disc.,

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United States v. Michaud, Crim. No. 3:15cr05351, ECF 161 (W.D. Wash. Feb. 17, 2016)). In
that case, the government—as it does here—vigorously objected to disclosure of the NIT
programming code; litigation concerning such disclosure is ongoing. See Minute Entry for
Proceedings, Michaud, Crim. No. 3:15cr05351, ECF 199 (W.D. Wash. May 12, 2016).
Defendant fails to note that, as discussed supra, after the government moved for reconsideration
of the court’s order and an in camera, ex parte hearing, the court reversed its earlier ruling and
declared that the government was not required to produce the requested discovery concerning the
NIT programming code, including the items described in Vlad Tsyrklevich’s Jan. 13, 2016
Declaration. Nothing about the government’s conduct in that litigation is inconsistent with the
position the government has taken in this case.
The defendant also contends that the government’s disclosure of information pertaining
to a different network investigative technique in an unrelated case is inconsistent with the
government’s position concerning the disclosure of the NIT in this case. It is not. The Cottom
case in the District of Nebraska, No. 13-cr-108, involves a different investigation of a different
website using a different investigative technique than the one pertinent to the defendant’s case.
That investigative technique was publicly sourced and no longer in use—in fact, example
programming code for the technique was available for review on a public website. After the
completion of suppression hearings and before trial, the government disclosed, in an expert
notice, information about government expert witnesses, including details about the specific
investigative technique used in that case, about which those experts were to testify at trial. The
government did not, in that case, as it does here, challenge whether defendants had met their
burden to demonstrate materiality related to the disclosed information. Further, there—unlike

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here—the government did not assert that the particular technique was subject to law enforcement
privilege, see infra, as that technique was publicly available.
Although the defendant sets forth three purposes for which he seeks disclosure of the NIT
programming code, he fails to identify any facts that he claims establish the materiality of that
information to his suppression motions or to his defense. Nor has the defendant shown that the
government’s objection to disclosure is inconsistent with its conduct in other cases.
II. None of the Defendant’s Other Claims of Relevance Establish Materiality
The defendant suggests that review of the NIT programming code is necessary to
“investigate the chain of custody for data collected remotely by the NIT.” Def.’s Mot. to
Compel Disc. at 2. This request is again purely speculative—he presents no facts whatsoever to
suggest that there are or were any issues with the so call “digital ‘chain of custody’” pertaining to
the NIT-derived information. That the NIT-derived information is computer-related information
does not entitle the defendant or his expert to rummage through government files—digital or
otherwise—in the hope of finding an error in the chain of custody. Cf. United States v. GuzmanPadilla, 573 F.3d 865, 890 (9th Cir. 2009) (“[M]ere speculation about materials in the
government’s files [does not require] the district court . . . under Brady to make the materials
available for [appellants’] inspection.”); Am. Radiator & Standard Sanitary Corp., 433 F.2d at
202 (same).
III. The NIT Programming Code is Subject to Qualified Law Enforcement Privilege
If the Court finds—as it should—that the defendant has failed to meet his burden to show
that the requested information is material and otherwise discoverable under Rule 16, that will
resolve the defendant’s motion. In the event the Court were to determine that the NIT
programming code is material to

’s defense, however, then the requested information

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pertaining to that code is nevertheless subject to a qualified law enforcement privilege, as its
disclosure would be harmful to the public interest.9 Specifically, disclosure could diminish the
future value of important investigative techniques, allow individuals to devise measures to
counteract these techniques in order to evade detection, discourage cooperation from third parties
and other governmental agencies who rely on these techniques in critical situations, and possibly
lead to other harmful consequences not suitable for inclusion in this response. Ex. H, Affidavit
of Robert Stone (filed under seal) (hereinafter Stone Aff.) 10 ¶5. As explained below, courts have
generally recognized that, because of the sensitivity of information that may support this type of
privilege claim, it is appropriate to consider a submission from the government ex parte and in
camera. Accordingly, in the event it determines the defendant’s request for programming code
is material, the United States accordingly requests that the Court permit the United States to offer
evidence in support of its privilege claim ex parte and in camera.11
The privilege has its roots in United States v. Roviaro, where the Supreme Court first
recognized a qualified “informer’s privilege” that protects the identity of government informants.
353 U.S. 53, 59 (1957). Courts have since extended the qualified privilege in Roviaro to cover

9

Further, the FBI has derivatively classified portions of the tool, the exploits used in connection
with the tool, and some of the operational aspects of the tool in accordance with the FBI’s
National Security Information Classification Guide. As of the date of this filing, the government
is waiting on a formal, signed document from an FBI Original Classification Authority to detail
the specific aspects of the classification of the information.
10

While the Stone declaration was originally drafted for the related case, United States v.
Matish, 4:16cr16, before Senior United States District Judge Henry Coke Morgan, the same
information applies in this case.
11

Should the Court permit the ex parte and in camera submission, the government advises that a
Classified Information Security Officer with the Litigation Security Group at the U.S.
Department of Justice will have to assist in providing certain documents to the Court. Arranging
for this may cause a short delay, and the government requests the Court’s indulgence in
arranging such an event.
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other investigative techniques, including traditional and electronic surveillance. For example, in
United States v. Green, the D.C. Circuit applied the privilege to bar disclosure of the location of
an observation post in a drug investigation because failing to do so would “likely destroy the
future value of that location for police surveillance.” 670 F.2d 1148, 1155 (D.C. Cir. 1981). In
United States v. Van Horn, the Eleventh Circuit applied the privilege to bar disclosure of the
nature and location of electronic surveillance equipment because disclosure would “educate
criminals regarding how to protect themselves against police surveillance.” 789 F.2d 1492, 1507
(11th Cir. 1986); see also In re The City of New York, 607 F.3d 923, 928-29 (2d Cir. 2010)
(finding that the district court erred by failing to apply the privilege to reports made by
undercover agents because they contained “detailed information about [] undercover operations,”
disclosure of which would “hinder [law enforcement’s] ability to conduct future undercover
investigations”). The purpose of the privilege is, among other things, “to prevent disclosure of
law enforcement techniques and procedures.” In re Dep’t of Investigation, 856 F.2d 481, 484
(2d Cir. 1988); Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 64 (1st Cir. 2007).
The government bears the initial burden of showing that the law enforcement privileges
applies to the materials at issue, In re The City of New York, 607 F.3d at 944, and the courts then
apply a balancing test in determining whether disclosure is required, Van Horn, 789 F.2d at
1508. To meet its initial burden, the government must show that the materials contain
information that the law enforcement privilege is intended to protect, which includes
“information pertaining to law enforcement techniques and procedures, information that would
undermine the confidentiality of sources, information that would endanger witnesses and law
enforcement personnel [or] the privacy of individuals involved in an investigation, and
information that would otherwise . . . interfere[] with an investigation.” In re The City of New

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York, 607 F.3d at 944 (citations and internal quotation marks omitted); see also Commonwealth
of Puerto Rico v. United States, 490 F.3d 50, 64 (1st Cir. 2007) (extending privilege recognized
for “confidential government surveillance information” to “law enforcement techniques and
procedures”). See Stone Aff. ¶ 6.
Because the evidence required to establish the privilege is often sensitive, courts have
recognized that it is appropriate to permit the government to make its showing through an ex
parte and in camera evidentiary hearing, the record of which should be sealed for later review.
See, e.g., United States v. Johns, 948 F.2d 599 (9th Cir. 1991) (approving, over the defense
objection, court’s consideration of the government’s request to maintain the confidentiality of an
informant in an ex parte, in camera hearing); United States v. McLaughlin, 525 F.2d 517, 519
(9th Cir. 1975) (upholding trial court’s conducting of in camera hearing regarding disclosure of
informant’s identity and determining that disclosure was not required); United States v. Fixen,
780 F.2d 1434, 1439-40 (9th Cir. 1986) (suggesting use of in camera proceedings to resolve law
enforcement privilege issues); United States v. Kiser, 716 F.2d 1268, 1273 (9th Cir. 1983)
(remanding to district court to conduct ex parte, in camera hearing pertaining to Roviaro
privilege issue and citing cases authorizing in camera hearings in similar situations); Van Horn,
789 F.2d at 1508 (district court held in camera hearing); Global Relief Found, Inc. v. O’Neill,
315 F.3d 748 (7th Cir. 2002) (“Ex parte consideration is common in criminal cases where, say,
the identity of information might otherwise be revealed”); In re Department of Homeland
Security, 459 F.3d 565, 569-71 (5th Cir. 2006) (instructing the district court in a civil case to
“review the documents at issue in camera to evaluate whether the law enforcement privilege
applies”); In re The City of New York, 607 F.3d at 949 (determining requesting party did not
have compelling need for requested information based on in camera review of the documents);

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Rigmaiden, 844 F. Supp. 2d at 982 (denying defendant’s requests for discovery concerning
investigative technique after ex parte, in camera review at which the court heard the
government’s reasons for nondisclosure); cf. In re Grand Jury Proceedings #5 Empanelled Jan.
28, 2004, 401 F.3d 247, 253 (4th Cir. 2005) (approving the use of ex parte and in camera review
of allegedly privileged documents in the context of a crime-fraud exception claim).
At an ex parte in camera hearing, the United States can provide a more detailed
presentation about both the nature of the information that the defendant is requesting and the
government’s concerns regarding its disclosure. Because of the sensitivity of the technique and
for other reasons, simply filing the material under seal with a protective order is inadequate to
address the government’s concerns. Indeed, courts have recognized that sealing documents and
materials containing such sensitive information is frequently inadequate to prevent its public
disclosure. See, e.g., In re The City of New York, 607 F.3d at 937-39 (citing numerous specific
examples of instances where “sealed” materials were inadvertently or intentionally disclosed,
and concluding that “[i]n light of how often there are all-too-human lapses with material filed
‘under seal’” that it could not “conclude with confidence that filing” the sensitive information
would adequately protect the information from public disclosure).
Upon a finding that the privilege applies, there is a “pretty strong presumption against
lifting the privilege.” In re The City of New York, 607 F.3d at 945 (quoting Dellwood Farms v.
Cargill, 128 F.3d 1122, 1125 (7th Cir. 1997)). The burden shifts to the defendant, who must
show that his need for the information overcomes the public interest in keeping it secret. See
Alvarez, 472 F.2d at 113 (finding, regarding disclosure of informer identity, that “in balancing
the interest of the government against that of the accused, the burden of proof is on the defendant
to show the need for disclosure); see also Van Horn, 789 F.2d at 1507. The public interest in

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keeping the information private must be balanced against a defendant’s articulated need for the
information. See Roviaro, 353 U.S. at 628-29. “Whether a proper balance renders nondisclosure
erroneous must depend on the particular circumstances of each case, taking into consideration
the crime charged, the possible defenses, the possible significance of the [privileged
information], and other relevant factors.” Id. at 629.
In conducting this balancing, the court should consider the defendant’s “need [for] the
evidence to conduct his defense and [whether] there are . . . adequate alternative means of getting
at the same point. The degree of the handicap [to the defendant] must then be weighed by the
trial judge against the policies underlying the privilege.” United States v. Harley, 682 F.2d 1018,
1020 (D.C. Cir. 1982); United States v. Cintolo, 818 F.2d 980, 1002 (1st Cir. 1987) (the question
is “whether the [defendant] demonstrate[s] an authentic ‘necessity,’ given the circumstances to
overbear the qualified privilege); United States v. Foster, 986 F.2d 541, 543 (D.C. Cir. 1993)
(balancing the defendant’s need for information against importance of government’s interest in
avoiding disclosure).
In striking this balance, the Court should also keep in mind that the need for disclosure is
more limited in the context of a suppression hearing than at trial. See McCray v. Illinois, 386
U.S. 300, 311 (1967); see also Rigmaiden, 844 F. Supp. 2d at 990 (applying McCray in the
context of motion for disclosure of electronic tracking equipment). Even if the party seeking
disclosure successfully rebuts the presumption (by a showing of, among other things, a
“compelling need”), the court must still then weigh the public interest in non-disclosure against
the need of the litigant for access to the privileged information before ultimately deciding
whether disclosure is required. In re the City of New York, 607 F.3d at 948.

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As can be explained in more concrete terms in an ex parte, in camera hearing, the public
interest in nondisclosure here significantly outweighs the defendant’s need for the information,
particularly in light of the defendant’s speculative claims regarding the materiality of the
requested information. In particular, the risk of circumvention of an investigative technique if
information is released has been recognized as a factor in applying law enforcement privilege to
electronic surveillance. See Van Horn, 789 F.2d at 1508.12 Accordingly, in the event the Court
finds the requested information to be material, the Court should hold an ex parte, in camera
hearing to assess the applicability of the privileges and the defendant’s need for the materials.
The analysis of the Sixth Circuit in United States v. Pirosko, 787 F.3d 358 (6th Cir. 2015)
is instructive here. Pirosko affirmed the district court’s denial of a motion to compel disclosure
of “the law enforcement tools and records” (there, ShareazaLE, a proprietary program used
exclusively by law enforcement) used to search a defendant’s computer for child pornography.
787 F.3d at 362. Similar to this case, the defendant in that case presented a purported expert
declaration claiming that analysis of the government’s investigative tools “can determine
whether law enforcement officers manipulated data on the subject computer [or] the error rates in
records used.” Id. at 363. The defendant also contended that review of the source code was
necessary to allow “his experts to determine whether [the software] gives government officials
‘the ability to manipulate settings or data on the target computer (even unintentionally),’
‘whether the software allows agents to override shared settings to download files that a normal
12

Risk of circumvention has also been accepted by numerous courts as a basis for nondisclosure
in the civil FOIA context. See, e.g., James v. U.S. Customs and Border Protection, 549 F. Supp.
2d 1, 10 (D.D.C. 2008) (concluding that CBP properly withheld information under FOIA that
“could enable [others] to employ measures to neutralize those techniques”); Judicial Watch v.
U.S. Department of Commerce, 337 F. Supp. 2d 146, 181-82 (D.D.C. 2004) (“[E]ven commonly
known procedures may be protected from disclosure if the disclosure if the disclosure could
reduce or nullify their effectiveness.”)
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user would not be able to download,’ and ‘the error rate’ associated with the software.” Id. at
365. As here, the defendant produced no evidence to suggest that any of those speculative
concerns were actually manifested – such as, through an examination of the defendant’s
computers. The government objected to disclosure on both Rule 16 materiality and law
enforcement privilege grounds, arguing that granting the motion to compel “would compromise
the integrity of its surveillance system and would frustrate future surveillance efforts.” Id. at
365. The Court of Appeals for the Sixth Circuit endorsed the government’s argument on both
points, holding that “it is important for the defendant to produce some evidence of government
wrongdoing” – which that defendant had failed to do – when balancing the government’s
assertion of the law enforcement privilege against the needs articulated by a defendant. Id. at
365-66 (emphasis supplied).
Similarly persuasive is the District Court’s analysis in United States v. Rigmaiden. In
that case, the government, acting on the authority of a tracking device warrant, used a cellular
site simulator in order to locate a wireless “aircard” that assisted in locating and ultimately
identifying the defendant. 13 The defendant moved to compel production of additional
information pertaining to the technology, methods, and personnel involved in tracking the
“aircard.” The government provided information pertaining to the aircard tracking, but opposed
disclosure of technical details, asserting law enforcement privilege. Following hearings related
to the issues, the Court denied the defendant’s requests, finding either they were speculative and
accordingly, not material, or that the defendant had not demonstrated a compelling need in light
of the government’s persuasive showing regarding the law enforcement privilege. Rigmaiden,
844 F. Supp. 2d at 996-1004.

13

An “aircard” may be attached to a laptop in order to provide Internet service.
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Here, the defendant cannot demonstrate any compelling need for the requested
information. As demonstrated above, his requests are entirely speculative and conclusory. Such
requests are insufficient to justify a compelling need, in light of the government’s assertion of
privilege. See United States v. Buras, 633 F.2d 13566, 1360 (9th Cir. 1980); Guzman-Padilla,
573 F.3d at 890. The defendant cannot compel disclosure based simply on his conjecture that
privileged material may contain something relevant.
In addition, the defendant has been provided or has access through discovery to
“adequate alternative means of getting at the same point” to which he claims disclosure of the
information is relevant. Harley, 682 F.2d at 1020. The government is willing to provide, as it
did in Michaud, the computer instructions comprising the NIT that, when executed, produced the
NIT results. This information would allow defendant to verify that the particular instructions
would have produced the particular results and therefore that the NIT was properly described and
operated consistent with that description. Defendant also has a copy of the forensic report of his
computer and substantial information pertaining to his dates of access to the pertinent site and
the date and time at which the NIT identified his IP address accessing that site. He may analyze
that information if he wishes to verify that the NIT did not interfere with or compromise any data
or computer functions. And, to the extent the defendant wishes to request chain of custody
documentation from the government regarding items to be admitted at trial, there are numerous
avenues available for him to request such information short of seeking to rummage through the
government’s files or to compel the government to disclose privileged material. Accordingly,
the defendant cannot establish the sort of compelling need required to outweigh the significant
public interest in nondisclosure of additional materials pertaining to the use and execution of the
court-authorized NIT.

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CONCLUSION
For the foregoing reasons, the defendant’s motion to compel should be denied.
Respectfully submitted,
DANA J. BOENTE
UNITED STATES ATTORNEY
By: ______/s/___________________
Elizabeth M. Yusi
Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
101 West Main Street, Suite 8000
Norfolk, Virginia 23510
Phone: (757) 441-6331
Fax: (757) 441-6678
Email: elizabeth.yusi@usdoj.gov

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DEFENDANT'S REPLY FOR FIRST SAMPLE MOTION TO COMPEL

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
UNITED STATES OF AMERICA

)
)
)
)
)

v.

Criminal No. 2:16cr92

DEFENDANT’S REPLY TO GOVERNMENT’S RESPONSE TO
DEFENDANT’S MOTION TO COMPEL
, through counsel and pursuant to Federal Rule of Criminal Procedure
47(F)(1), respectfully submits this Reply to the Government’s Response to Defendant’s Motion
to Compel, ECF No. 21.
*

*

*

The defense asks the Court to order the government to provide the exploit and unique ID
generator for the NIT it used to search

b’s computer. Here, the defense first

responds to the government’s attempt to distinguish the recent decision in United States v.
Michaud. Second, the defense addresses the fundamental flaw in the government’s position:
namely, that the government attempts to avoid producing evidence by instead describing
evidence and unilaterally asserting the inferences that the government’s agents believe can be
drawn therefrom. And, third, the defense provides the attached declaration of Dr. Christopher
Soghoian of Yale Law School and the ACLU as a factual response to the government’s
declarations.
Michaud Court Found Requested Data Material to the Defense
The government suggests that the decision in Michaud—involving the exact same
discovery request related to the exact same investigation—is not instructive for two reasons.
First, the government claims that there is a meaningful difference in Rule 16’s materiality
1
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standard that renders the requested data material in the Ninth Circuit but immaterial in the
Fourth. (ECF No. 21, 8.) This is a red-herring. For the reasons discussed below, the Fourth
Circuit’s materiality standard is met here.
Second, the government directs the Court away from reliance on Michaud because, at the
time the government filed its Response, “litigation concerning such disclosure is ongoing.” (ECF
No. 21, 20.) This is apparently an allusion to the fact that the government is appealing the district
court’s suppression of all NIT-related evidence in Michaud based on the government’s failure to
produce material discovery related to the government’s use of NIT malware. In the order attached to
the underlying Motion as Exhibit E (and for the reasons stated in open court in the transcript included
as part of the same exhibit) the district court in Michaud suppressed all fruits of the NIT search in
light of the government’s refusal to provide the material data. The Michaud court held that even
though the requested data was subject to a qualified law enforcement privilege, the data was
sufficiently important to the defense that the government could not proceed with a prosecution that
relied on this evidence without producing it. The Michaud litigation (in the district court) is over, the
government’s appeal to the Ninth Circuit notwithstanding. The Court here should reach the same
conclusion as the Court in Michaud as the facts are identical and the law is not meaningfully
different.
Rule 16 Gives the Defense a Right to Inspect; Not a Right to FBI Observations and Assurances
The government repeatedly insists that the defense declarations and motions lack specificity;
it calls the defense request a “fishing expedition.” (ECF No. 21, 5.) This is patently false. The
fundamental disagreement here is whether Rule 16 requires the defense to take the government’s
word for it when, 1) the defense requests evidence, 2) the defense articulates clearly the relevance of
that evidence to its defense, and 3) the government insists that it has reviewed the evidence and

2
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assures the defense that, in its view, the evidence will not fundamentally alter the quantum of proof at
trial.
The government relies heavily on a declaration by FBI Special Agent Daniel Alfin. (ECF
No. 21-7.) In essence, Agent Alfin’s declaration is a series of statements in which he suggests that he
has conducted a review of the evidence. Rather than producing the evidence, the government
provides Alfin’s analysis of what the evidence shows. This is a fundamental misconception of the
adversarial system.

and his attorneys—with the help of experts hired by the defense—

are entitled to review the evidence itself to determine what technological defenses can and cannot be
made at trial. To avoid a battle-of-the-experts at trial, the government is proposing that the defense
take the government-expert’s word for what the evidence shows. Indeed, the government’s seeks to
preclude defense experts from even looking at the facts and data underlying the opinions set forth in
the government-experts’ declarations.
This phenomenon is revealed by the government’s position regarding the discoverability of
the exploit. The government concedes that exploits like the one the government used here can infect
a computer and leave the computer vulnerable to other security compromises. See, e.g., ECF No. 211, ¶¶ 9, 14; ECF No. 21 (“While it is possible for some exploits to [make changes to the computer],
the NIT in question and the exploit it used to deliver computer instructions did not do so.”). Indeed,
Alfin concedes that what the defense expert, Dr. Miller, described as the basis for a technical trial
defense: It is “theoretically possible” for an exploit like this to compromise the security of a firewall.
Id. at ¶ 14. But then Aflin assures the defense that the exploit the FBI used against

not

compromise his computer’s security. How is Agent Alfin so sure of this? Agent Alfin testified as to
the basis for the assertion in Paragraph 14 of his declaration in a recent evidentiary hearing:

3
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(ECF No. 21-4, 111:5-22.)1 Agent Alfin continued:

1

At an evidentiary hearing in the Matish case, Agent Aflin testified for the first time that
he had never reviewed the exploit: “I have not viewed the exploit myself, nor have I ever
claimed to or made any implication that I have.” (ECF No. 21-3, 31:18-19.)
4
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(ECF No. 21-4, 112:10-24.) Finally, SA Aflin explained:

(ECF No. 21-4, 115:4-19.)

5
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In sum, Agent Alfin does not possess the expertise to write the exploit.

He has never

actually reviewed the exploit. And the conclusory statements he offers in his declaration are based
on some combination of conversations with unidentified government agents and Agent Alfin having
“run” the exploit possibly less than 10 times while looking for obvious changes. Agent Alfin may be
misinformed. He may simply lack the sophistication (or incentive) to find such properties in the
FBI’s exploit. But, in any event, the government’s fundamental position is that an FBI agent’s
description of the exploit and assurances about its properties are sufficient to eliminate the
government’s obligation to produce it. 2
The government attempts to take the same approach with respect to discovery related to the
“unique identifier.” Agent Alfin’s declaration purports to answer the “ultimate question” posed by
the defense by stating, “I have reviewed the list of unique identifiers … and confirmed that there
were in fact no duplicate[s]”. ECF No. 21-7, at ¶ 26. But this conclusion without any underlying
evidence deprives the defense of a meaningful ability to cross-examine government witnesses at trial.
Not only has the government refused to produce the code that generates the “unique identifiers” it
has refused to produce what the code generated or a more meaningful description of the process:
Again, Agent Alfin’s testimony at a recent hearing is illuminating. When asked about how he knows
that the government’s code did not create duplicate identifiers, Agent Alfin testified:

2

The government’s assertion that a forensic review of
’s computer could
serve as an adequate substitute for production of the exploit is erroneous. Dr. Soghoian
addresses this argument both in his declaration and in his testimony in the Darby and Eure cases.
See Def. Ex. F; see also Gov’t Ex. D, ECF No. 21-4, 53:6-54:4. The government’s assertion that
“the defense has declined to review the network data” is simply false. (ECF No. 21, 13.) In the
case, the government has not yet made the so-called “network data” available. But in
other Playpen cases where the government has actually produced this data, the Office of the
Federal Public Defender has reviewed it. And—for the reasons explained by Dr. Soghian—it is
not a substitute for the discovery the defense seeks.
6
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(ECF No. 21-4, 103:4-104:1.) Under the Fourth Circuit’s decision in United States v. Caro,

evidence “is material as long as there is a strong indication that it will play an important role in
uncovering admissible evidence, aiding witness preparation, corroborating testimony, or
assisting impeachment or rebuttal.” 597 F.3d 608, 621 (4th Cir. 2010) (quoting United States v.
Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)). Without the government producing the exploit and
the unique ID generator, how exactly is the defense supposed to prepare its own trial expert to
challenge the government on whether the “unique identifier” allegedly associated with

7
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Case 2:16-cr-00092-RBS-RJK Document 27 Filed 08/17/16 Page 8 of 10 PageID# 1249

really was unique or instead could have been a duplicate associated with some other
Playpen user? How can the defense corroborate whether the exploit made fundamental changes
to

’s computer that rendered it vulnerable to unauthorized access by actors who

were perhaps less “well-intentioned” than the FBI? And how can

’s lawyers hope

to impeach or rebut Agent Alfin and other government witnesses at trial when they testify about
evidentiary material that neither

’s lawyers nor his tech experts have ever seen?

Due process and Rule 16 require that the actual items—the evidence—be produced and made
available for inspection by the defense. Agent Alfin’s entire declaration is an attempt to substitute
descriptions of evidence for the production of evidence. See, e.g., ECF No. 21-7, at ¶ 19 (“I have
reviewed that data stream and, as explained below, confirmed…”); id., at ¶ 9 (“I have personally
executed the NIT on a computer under my control and observed…”). This is simply not what Rule
16 contemplates.

Dr. Soghoian’s Declaration in Response
Finally, the defense submits here a declaration by Dr. Christopher Soghoian of Yale Law
School and the ACLU, which responds to some of the factual issues raised by Agent Alfin’s
declaration. See Ex. F. To be sure, the government’s current monopoly on the evidence allows its
agents to review the very data at issue. But, together, Mr. Tsyrklevich, Dr. Miller, and Dr. Soghoian
have provided the Court with substantial evidence in support of the defense’s position that the
requested data is essential to mounting a technology-based defense to this technology-dependent
prosecution. The Court should require the government to stop using its asymmetry of information as
both a sword and a shield. The defense respectfully requests that the Court compel production.

8
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Respectfully submitted,

By:_________/s/_______________
Amanda C. Conner
VSB # 88317
Attorney for
Office of the Federal Public Defender
150 Boush Street, Suite 403
Norfolk, Virginia 23510
(757) 457-0816
(757) 457-0880 (telefax)
amanda_conner@fd.org
Andrew W. Grindrod
VSB # 83943
Assistant Federal Public Defender
Attorney for
Office of the Federal Public Defender
150 Boush Street, Suite 403
Norfolk, Virginia 23510
(757) 457-0800
(757) 457-0880 (telefax)
andrew_grindrod@fd.org

9
110

EXHIBIT TO DEFENDANT'S REPLY FOR FIRST SAMPLE MOTION TO COMPEL

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Newport News Division
UNITED STATES OF AMERICA
v.

)
)
)
)
)

Criminal No. 4:16cr16

DECLARATION OF DR. CHRISTOPHER SOGHOIAN
I, Christopher Soghoian, declare the following under penalty of perjury:
1. I am a researcher focused on privacy, computer security and government surveillance. I
completed a B.S. in Computer Science from James Madison University, a M.S. in Security
Informatics from The Johns Hopkins University and a Ph.D. in Informatics from Indiana
University. My academic research has been published in a number of law journals, and has
been cited by several federal and state courts, including by the 9th Circuit Court of Appeals
1
and the State Supreme Courts of New Jersey and Massachusetts.
2. I am currently employed by the American Civil Liberties Union as the Principal Technologist
in the ACLU’s Speech, Privacy and Technology Project. I am also a visiting fellow at Yale
Law School’s Information Society Project. I have previously worked in technical roles at the
Federal Trade Commission, Google, Apple, and IBM. I have written this declaration as an
unpaid volunteer expert for the defense and submit it to the court in my personal capacity,
not on behalf of my employer.
3. I have researched the FBI’s use of Network Investigative Techniques (“NITs”) for more than
three years. In 2014, I organized the first­ever academic conference in the United States
focused on hacking by law enforcement, held at Yale Law School. 2 I have given several
public talks about the use of hacking and malware by the FBI, including at training events for
federal judges organized by the Federal Judicial Center.

1

See US v. Pineda­Moreno, 617 F. 3d 1120, Court of Appeals, 9th Circuit 2010 (Kozinski dissental), State v. Earls,
70 A. 3d 630 ­ NJ: Supreme Court 2013 and Commonwealth v. Augustine, 467 Mass. 230 ­ Mass: Supreme Judicial
Court 2014.
2
See Law Enforcement and Hacking, Information Society Project, Yale Law School, February 18, 2014, videos
online at https://www.law.yale.edu/yls­today/yale­law­school­videos/hacking­technologies­used­law­enforcement
and
https://www.law.yale.edu/yls­today/yale­law­school­videos/legal­and­policy­implications­hacking­law­enforcement
.

1

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Case 2:16-cr-00092-RBS-RJK Document 27-1 Filed 08/17/16 Page 2 of 8 PageID# 1253

4. In 2014, while researching the history of FBI hacking, I discovered that in a 2007 operation,
FBI agents impersonated the Associated Press in an effort to deliver surveillance software to
a teenager in Timberline, Washington. My subsequent public disclosure of this information
resulted in significant news coverage, a formal complaint to the Attorney General from
3
4
twenty­five news organizations, a Congressional probe into the incident, and a public
5
defense of the practice by the FBI Director.
Network Investigative Techniques
5. As Special Agent Alfin’s declaration makes clear, there is some disagreement between
Michaud’s technical experts and the FBI about what a NIT is and is not. There is also clear
disagreement about whether or not a NIT is “malware”.
6. The term “Network Investigative Technique” was created by the US government. While
researching the history of NITs, I was informed by a senior DOJ official that the term
originated in the Computer Crime and Intellectual Property Section within DOJ’s Criminal
Division.
7. Outside of the law enforcement community, a number of terms of art are used by technical
security experts to describe software that is installed without the knowledge and consent of a
computer user, and that covertly extracts information from that person’s computer. These
terms include “malware,” “surveillance software,” and “Remote Administration Tools”
(RATs). These terms are all functionally equivalent.
8. In his declaration, Special Agent Alfin suggests, without citing any supporting evidence, that
an essential component of malware is that the software must make permanent changes to the
security settings of the target computer.6 I disagree with this statement.
9. The Ninth Circuit Court of Appeals has described malware as software that “works by, for
example, compromising a user’s privacy… stealing identities, or spontaneously opening
Internet links to unwanted websites….” See Zango v. Kaspersky Lab, Inc., 568 F.3d 1169
(9th Cir. 2009). Like the malware in Zango, the NIT used by the FBI in the Playpen
3

See The Reporters Committee for Freedom of the Press et al., Letter to Eric H. Holder, Jr. and James B. Comey,
Jr., November 6, 2014, http://www.rcfp.org/sites/default/files/2014­11­06­letter­to­doj­fbi­regarding­se.pdf
4
See Senator Patrick Leahy, Letter to Eric Holder Jr., October 30, 2014,
http://thehill.com/sites/default/files/10­30­14_leahy_to_holder_re_­_fbi_fake_ap_article.pdf.
5
See James B. Comey, To Catch a Crook: The F.B.I.'s Use of Deception (Letter To The Editor), New York Times,
November 5, 2014, http://www.nytimes.com/2014/11/07/opinion/to­catch­a­crook­the­fbis­use­of­deception.html
6
See Alfin Declaration, paragraph 6, page 2.

2

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investigation compromised the privacy and anonymity of the individuals that visited the site,
and forced their web browsers to connect to an unwanted site (the FBI’s server in Virginia).
10. The capabilities of NITs used by the FBI in other cases include identical surveillance features
as malware used by criminals and foreign governments. These capabilities include being able
7
to remotely activate the webcam and microphone on a victim’s computer.
11. The FBI has used the same methods as those used by criminal hackers and foreign
governments to deliver malware to targets. This includes the impersonation of journalists 8
and the delivery of malware to large numbers of visitors to a particular website (a technique
9
that experts call a “watering hole attack”).
12. The primary difference between the FBI’s NITs and the malware used by hackers and
authoritarian foreign governments appears to be that the FBI’s software is used pursuant to
court orders issued by a court in the United States. From a technical perspective, NITs are
still malware.

7

Compare the features of BlackShades, a malware tool used by criminals to the capabilities of the NIT software
used by the FBI. See US v. Yücel, 97 F. Supp. 3d 413 ­ Dist. Court, SD New York 2015 (“The malware included a
remote access tool (‘RAT’), which enabled users ‘to remotely control victims’ computers, including [by] captur[ing]
the victims’ keystrokes as they type’—the ‘keylogger’ function— ‘turn[ing] on their webcams, and search[ing]
through their personal files.’”) See also Ellen Nakashima and Craig Timberg, FBI’s search for ‘Mo,’ suspect in
bomb threats, highlights use of malware for surveillance, Washington Post, December 6, 2013 (“The most powerful
FBI surveillance software can covertly download files, photographs and stored e­mails, or even gather real­time
images by activating cameras connected to computers, say court documents and people familiar with this
technology.”)
8
See Bill Marczak and John Scott­Railton, Keep Calm and (Don’t) Enable Macros: A New Threat Actor Targets
UAE Dissidents, Citizen Lab, Munk School of Global Affairs, The University of Toronto, May 29, 2016,
https://citizenlab.org/2016/05/stealth­falcon/ (describing attempts by an entity, believed to be the government of the
United Arab Emirates, attemping to deliver malware to dissidents by pretending to be a fictious journalis).
9
See Michael Mimoso, Council on Foreign Relations Website Hit By Watering Hole Attack, IE Zero­Day Exploit,
Threatpost, December 29, 2012,
https://threatpost.com/council­foreign­relations­website­hit­watering­hole­attack­ie­zero­day­exploit­122912/77352/
. The Department of Justice has taken the position that bulk delivery of NITs in operations like Playpen are not
watering hole attacks. As with the question of whether a NIT is malware, the Department of Justice and the technical
community do not see eye to eye. See David Bitkower, Deputy Assistant Attorney General, Memorandum to Reena
Raggi, Chair, Advisory Committee on Criminal Rules, December 22, 2014
http://www.uscourts.gov/file/17944/download at 145 (“The ACLU calls this technique a ‘watering hole attack’ and
suggests that it may violate the Fourth Amendment... The Department disagrees both with that label and with the
legal conclusion.”)

3

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The Importance Of Encryption
13. When an individual browses the web, data that is transmitted from their computer to the
websites they visit must pass through communications networks and networking equipment
run by a number of Internet Service Providers. These Internet Service Providers all have the
ability to inspect and modify that data as it passes through their network. Internet Service
Providers may modify the contents of web pages that are being delivered through their
network, in order to to inject advertisements or to facilitate advertising­related tracking of
10
their customers.
14. In addition to the authorized parties that can intercept and tamper with data as it flows over
the Internet, unauthorized parties can do so too, if they have hacked into a server or network
that the data passes through. For example, journalists relying on documents from NSA
whistleblower Edward Snowden have revealed that Britain’s signals intelligence agency
hacked into a number of Belgian and German communications networks in order to
intercept the communications that flowed through those networks.11
15. When individuals use an open, or poorly secured, WiFi network, it is trivially easy for
hackers in the vicinity to inspect and modify data that is being transmitted over that WiFi
network.12
16. In order to protect their customers from a number of privacy and cybersecurity threats,
including the interception and tampering of private user data, many major Internet
companies use an encrypted connection to protect data that is transmitted to and from their

10

See Gabi Nakibly et al., Website­Targeted False Content Injection by Network Operators, 25th USENIX Security
Symposium,, August, 2016, http://www.cs.technion.ac.il/~gnakibly/papers/arXiv1602.07128.pdf. See also Nate
Anderson, How a banner ad for H&R Block appeared on apple.com—without Apple’s OK, Ars Technica, April 8,
2013, http://arstechnica.com/tech­policy/2013/04/how­a­banner­ad­for­hs­ok/. See also In the Matter of Cellco
Partnership, d/b/a Verizon Wireless, Federal Communications Commission, March 7, 2016, EB­TCD­14­00017601,
https://apps.fcc.gov/edocs_public/attachmatch/DA­16­242A1.pdf (describing Verizon’s injection of unique tracking
IDs into mobile users’ web browsing traffic).
11
See Ryan Gallagher, Operation Socialist: The Inside Story of How British Spies Hacked Belgium’s Largest Telco,
The Intercept, December 13, 2014, https://theintercept.com/2014/12/13/belgacom­hack­gchq­inside­story/. See also
Andy Müller­Maguhn et al., Map Of The Stars: The NSA and GCHQ Campaign Against German Satellite
Companies, The Intercept, September 14, 2014, https://theintercept.com/2014/09/14/nsa­stellar/.
12
See Kate Murphy, New Hacking Tools Pose Bigger Threats to Wi­Fi Users, New York Times, February 16, 2011,
http://www.nytimes.com/2011/02/17/technology/personaltech/17basics.html.

4

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websites. This encryption technology, known as HTTPS, is displayed to the user as a lock
icon in a web browser.
17. Encryption typically provides three security benefits: Confidentiality, Integrity and
Authentication. What this means is that when a software client (such as a web browser) uses
encryption to protect data that is transmitted to a server (such as a web site), encryption
protects that data from interception by third parties (confidentiality), it ensures that the client
and server will know if a third party has tampered with the data as it is transmitted between
them (integrity), and can permit the client and server to be confident that they are talking to
each other and not an imposter (authentication).
18. In his declaration, Special Agent Alfin confirms that the NIT used by the FBI in the Playpen
operation did not use an encrypted connection to transmit data from the target computers
back to the FBI server.13
19. Because the FBI’s NIT did not use encryption, the data that was transmitted by the NIT to
the FBI’s server was vulnerable to both interception and tampering by third parties as it was
transmitted over the Internet.
20. That the FBI did not use encryption to protect data transmitted between the NIT and the
FBI’s server is in direct conflict with industry cybersecurity best practices and US
government policy.14
21. Senior federal officials including the FBI Director have, for nearly half a decade, stressed
15
the importance of using encryption to protect data that is transmitted over the internet.
13

See Alfin Declaration, paragraph 28, page 6.
See Tony Scott, Policy to Require Secure Connections across Federal Websites and Web Services, infra fn X.
15
See Pamela Jones Harbour, Remarks Before Third FTC Exploring Privacy Roundtable Washington, D.C, March
17, 2010,
https://www.ftc.gov/sites/default/files/documents/public_statements/remarks­third­federal­trade­commission­explori
ng­privacy­roundtable/100317privacyroundtable.pdf (“[Security needs to be a default in the cloud. Today, I
challenge all of the companies that are not yet using [HTTPS] by default. That includes all email providers, social
networking sites, and any website that transmits consumer data. Step up and protect consumers. Don’t do it just
some of the time. Make your websites secure by default.”) See also Lance Whitney, Senator wants more secure Web
sites for Wi­Fi use, CNET News, February 28, 2011,
https://www.cnet.com/news/senator­wants­more­secure­web­sites­for­wi­fi­use/. See also James B. Comey,
Statement Before the House Judiciary Committee Washington, D.C. March 01, 2016,
https://www.fbi.gov/news/testimony/encryption­tightrope­balancing­americans­security­and­privacy
https://www.fbi.gov/news/testimony/encryption­tightrope­balancing­americans­security­and­privacy (Encryption is
a “key tool to secure commerce and trade, safeguard private information ... and strengthen cyber security”).
14

5

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Case 2:16-cr-00092-RBS-RJK Document 27-1 Filed 08/17/16 Page 6 of 8 PageID# 1257

22. In 2015, the White House announced a new Office of Management and Budget policy
16
requiring all federal agencies to encrypt their websites by the end of 2016. Both the FBI
and DOJ websites have since enabled encryption by default.
23. As the FBI did not use encryption to protect the connection between the NIT and the FBI’s
server, the agency has no way to be sure that the data collected by the NIT was not tampered
with by third parties as it was transmitted over the internet to the FBI’s server.
24. The integrity protection provided by encryption can be thought of as similar to the role of a
tamper­evident seal in an evidence bag used by law enforcement. The digital evidence bag
that the FBI used to transmit NIT data was neither signed nor sealed, and the FBI has no
way of knowing what happened to the evidence before it reached the FBI’s server.
The Network Data Stream
25.

The government has offered to permit the defense to examine a copy of the “two­way
network data stream”, which Special Agent Alfin states “reflect[s] the information
transmitted to the FBI from
’s computer.” 17 Special Agent Alfin’s description is
incorrect. As the network data stream was recorded at an FBI facility, the stream reflects
the information received by the FBI, not the information transmitted by the NIT. As the
NIT did not use an encrypted connection, the data sent by the NIT may have been modified
in transit, and as a result, the data received by the FBI may be different than the data
transmitted by the NIT.

26.

The network data stream is not evidence of a chain of custody of the data transmitted by the
NIT, nor would examining it reveal if any of the data transmitted by the NIT was tampered
with as it was transmitted over the Internet to the FBI’s server.

27.

The network data stream is akin to a video recording of a forensic scientist at a FBI crime
lab opening up an evidence bag and testing the evidence inside. However, if the bag was

16

See Tony Scott, HTTPS­Everywhere for Government, White House Blog, June 8, 2015,
https://www.whitehouse.gov/blog/2015/06/08/https­everywhere­government. See also Tony Scott, Policy to Require
Secure Connections across Federal Websites and Web Services, Memorandum For the Heads of executive
departments and agencies, Office of Management and Budget, June 8, 2015,
https://www.whitehouse.gov/sites/default/files/omb/memoranda/2015/m­15­13.pdf.
17
See Alfin Declaration, paragraph 16, page 3.

6

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not sealed, the video footage can only show that the evidence was appropriately handled
once it was received by the crime lab, not what may have happened to the evidence
between the time when it was placed in the evidence bag and the time that it was received
by the crime lab.
28.

In his declaration, Special Agent Alfin states that the fact that the FBI’s NIT did not use an
encrypted connection is actually a good thing, as it enabled the FBI to capture a copy of the
network data stream:
“In fact, the network data stream that has been made available for
defense review would be of no evidentiary value had it been
transmitted in an encrypted format. Because the data is not
encrypted,
can analyze the data stream and confirm that the
data collected by the government is within the scope of the search
warrant that authorized the use of the NIT. Had the data been
transmitted in an encrypted format the data stream would be of no
evidentiary value as it could not be analyzed.”18

29.

Special Agent Alfin’s statement is incorrect. The FBI could have encrypted the connection
between the NIT and the FBI’s server, while also being able to capture a forensically valid
copy of the network data stream.19
The Importance of the Exploit Code

30.

Engineers routinely make mistakes when designing software and inadvertently introduce
software flaws into the code they write. These flaws can, in some cases, be exploited by
third parties to gain or exceed authorized access to a computer without the knowledge or
consent of the user.

31.

It is extremely difficult to write software without exploitable security flaws. Large,
respected software companies like Google and Microsoft employ hundreds of engineers
focused on computer security yet exploitable security flaws are regularly found in their
products.

18

See Alfin Declaration, paragraph 28, page 6.
For example, the FBI could have used a termination proxy, so that the connection between the NIT and the FBI’s
network would be encrypted, after which, the data could flow unencrypted over the FBI’s internal network to the
NIT server. The network data stream could be captured either on the NIT server itself, or from another device inside
the FBI’s network.
19

7

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118

DISCOVERY LETTER FOR FIRST SAMPLE MOTION TO COMPEL
FEDERAL PUBLIC DEFENDER
EASTERN DISTRICT OF VIRGINIA
150 BOUSH STREET, SUITE 403

NORFOLK, VIRGINIA 23510
TEL: (757) 457-0860
FAX: (757) 457-0880

Email: Amanda_Conner@fd.org

Geremy C. Kamens

AmandaConner

Federal Public Defender

Assistant Federal Public Defender

July 29,2016
VIA EMAIL

Elizabeth Yusi

United States Attorney's Office
101 West Main Street, Suite 8000
Norfolk, VA 23510

Email: Elizabeth.Yusi@usdoj.gov
RE; U.S. V.

, Crim. No. 2:16cr92 - Discovery

Dear Beth:

I write to request additional discovery in the above-reference case. We request all

information' relatedto the Playpen investigation. Specifically, we requestall information related
to the contents of the Playpen "main page"^ at the time that the network investigative technique
(NIT) was deployed against
's computer, which appears to have been in or around
February or March 2015. This request includes all information related to changes to the main
page, specifically information relevant to whether—at the time the NIT was deployed against
's computer—^the main page contained two images depicting partially clothed
prepubescent females with their legs spread apart. This request also includes information
relevant to when the contents of the main page changed, who made the change, and when law
enforcement learned of any change.

Second, we request all information demonstrating the number of new members who
joined Playpen after February 20,2015.
Third, we request all information demonstrating how many users visited Website A
during the period that the FBI operated it.
Fourth, we request all information demonstrating how many users visited Website A on a
weekly basis before the FBI took over the site.

Fifth, we request copies of the source code for all software that the government used to
identify
including the payload or "NIT"; the exploit; the "unique identifier"
generator; and the server software.
Sixth, we request copies of any and all memoranda, notes, emails, or other documents in
which members of the investigative team discussed how the NIT warrant affidavit was to be
' The term "information" is meant to encompass all documents and other material that is subject to
discovery under Rule 16 and/or the agreed discovery order entered in this case, as well as Brady material.

^The affidavit by Douglas Macfarlane in support of the application for a NIT warrant refers to the "main
page" of Website A. Website A is "Playpen."

119

phrased, including any discussion of whether the warrant would state on its face that searches
were to be conducted only in the Eastern District of Virginia. We also request any materials in
which members of the Department of Justice or the FBI discussed the legal authority for issuance
of a NIT warrant that purported to authorize the searches of places located outside the district in
which the authorizing magistrate sat.

Please do not hesitate to contact me if you have any questipn&-Qr concerns.

anda Conner

120

SECOND SAMPLE MOTION TO COMPEL

JUDGE ROBERT J. BRYAN

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
,
Defendant.
UNITED STATES OF AMERICA,
Plaintiff,
v.
,
Defendant.
UNITED STATES OF AMERICA,
Plaintiff,
v.
,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. CR16-5110RJB

)
)
)
)
)
)
)
)
)
)
)

No. CR15-387RJB

)
)
)
)
)
)
)
)
)
)
)

No. CR15-274RJB

MOTION AND MEMORANDUM IN
SUPPORT OF MOTION TO
COMPEL DISCOVERY
[Oral Argument Requested]
NOTED: September 30, 2016

MOTION AND MEMORANDUM IN
SUPPORT OF MOTION TO
COMPEL DISCOVERY
[Oral Argument Requested]
NOTED: September 30, 2016

MOTION AND MEMORANDUM IN
SUPPORT OF MOTION TO
COMPEL DISCOVERY
[Oral Argument Requested]
NOTED: September 30, 2016

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Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 2 of 9

I. INTRODUCTION
Defendants

and

, through their

attorneys, respectfully move the Court pursuant to Fed. R. Crim. P. 16(d) for an Order
compelling discovery material to their pending Motions to Dismiss the Indictment (dkt.
32) and Motions to Suppress (dkt. 35). This motion is supported by the following
memorandum of law, as well as the accompanying certification of defense counsel in
compliance with Local Rule CrR 16(i).
The trials are now scheduled for January 23, 2017, with a new pretrial motion
deadline of December 16, 2016.
II. BACKGROUND AND FACTS
On September 12 and 20, 2016, the parties requested the following discovery
from the Government:
1. All records related to the Government’s review and approval of Operation
Pacifier.
The defense has offered to examine these particular records pursuant to a
protective order limiting review to defense counsel and the Court.
The Department of Justice’s internal procedures and guidelines require a special
review and approval process for undercover online investigations. Discovery of the
records related to this process will likely confirm the Government’s knowledge that it
was not authorized to seek worldwide NIT warrants, an issue directly relevant to the
defendants’ Motion to Suppress and any claim by the Government that it acted in “good
faith.” In addition, the process leading to the Government’s decision to ignore the law
prohibiting distribution of child pornography from the Playpen site is relevant to the
defendants’ pending Motions to Dismiss the Indictment based on outrageous conduct.
2. Copies of any reports made to the National Center for Missing and Exploited
Children (NCMEC) regarding child pornography posted on the Playpen web site.

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Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 3 of 9

3. Copies of any notifications that were sent to victims by the Government for
obtaining restitution related to images that were posted on, or distributed from, the
Playpen web site.
Items 2 and 3 also relate to the Motion to Dismiss, since they are likely to yield
additional evidence that the FBI made no effort to track or contain the child
pornography that was posted on its site and that it has made little or no effort to meet its
victim notification and restitution obligations. This information is also relevant to any
restitution claims the Government may seek to level against the defendants, in terms of
the Government’s potential joint liability for restitution and the equities of any
restitution amounts claimed by the Government.
4. The number of new images and videos (i.e. content not previously identified
by NCMEC) that was posted on the site between February 20, 2015 and March 5, 2015.
Item 4 is likely to reveal evidence that the FBI’s operation of Playpen resulted in
the posting and distribution of new child pornography, a particularly egregious
consequence of its decision to keep the site not only fully functional but also encourage
and increase visitor traffic to Playpen.
5. The names of all agents, contractors or other personnel who assisted with
relocating, maintaining and operating Playpen while it was under Government control.
6. Copies of all notes, emails, reports, postings, etc. related to the maintenance,
administration and operation of Playpen between February 20, 2015 and March 5, 2015.
Items 5 and 6 are needed by the defense to identify potential witnesses for an
evidentiary hearing (if granted) on the FBI’s operation of Playpen. Further, this
discovery relates to the FBI’s efforts to improve and expand the site’s distribution
capabilities, an issue material to the pending outrageous governmental conduct issues.
See dkt. 32 and exh. A, attached hereto (copy of dkt. 40, evidencing the FBI’s efforts to
improve Playpen’s performance and attract new postings).

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Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 4 of 9

7. Copies of all legal memoranda, emails and other documents related to the
legality of the FBI’s operation of Playpen (and the distribution of child pornography by
the Government), including requests for agency/departmental approvals of the
undercover operation of Playpen and any communications with “Main Justice” or the
Office of General Counsel at the FBI.
This discovery request is material to further establishing that the Government’s
violation of Fed. R. Crim. P. 41 was deliberate and, consequently, requiring suppression
under United States v. Weiland, 420 F.3d 1062 (9th Cir 2005)).
This request is also material to rebutting any claim by the Government that the
Court should excuse its jurisdictional and Fourth Amendment violations under the
“good faith” exception to the exclusionary rule. See, e.g., United States v. Croghan,
2016 WL 4992105 at * 8 (D. Iowa Sept. 19, 2016) (suppressing all fruits of an NIT
search and finding that “law enforcement was sufficiently experienced, and that there
existed adequate case law casting doubt on magisterial authority to issue precisely this
type of NIT Warrant, that the good faith exception is inapplicable.”).
8. Copies of all correspondence, referrals and other records indicating whether
the exploit used in the Playpen operation has been submitted by the FBI or any other
agency to the White House’s Vulnerability Equities Process (VEP) and what, if any,
decision was made by the VEP.
This request is material because federal agencies are required to submit
information about computer security vulnerabilities and the use of malware for
investigatory purposes for VEP review and approval to ensure that use of the malware
complies with all applicable laws and does not pose substantial risks to the public. See
generally Electronic Privacy Information Center, Vulnerability Equities Process,
available at: https://epic.org/privacy/cybersecurity/vep/default.html; see also United
States v. Michaud, CR15-05351RJB, dkt. 195 (Mozilla’s Motion to Intervene) (“The

124

Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 5 of 9

information contained in the Declaration[s] of Special Agent Alfin suggests that the
Government exploited the very type of vulnerability that would allow third parties to
obtain total control an unsuspecting user’s computer.”)
9. Copies of invoices and other documents for the hosting facility/facilities
where the Government operated the Playpen server, the server from which the
Government delivered the NIT malware and the server that NIT targets sent their
identifying information back to, including documents revealing whether the
Government informed the hosting provider(s) that child pornography would be stored in
their facility or transmitted over their networks.
This discovery is also material to the pending Motion to Dismiss and to rebut a
claim of “good faith,” because it is likely to further establish that the FBI violated the
law by distributing child pornography and reveal the full extent of this illegality,
including the FBI’s failure to notify innocent third parties and Internet service providers
that they were being placed in possession of contraband or helping to distribute it.
10. The number of Playpen-related investigations that have been initiated but
did not result in criminal charges, beyond the approximately 200 cases now pending
across the country.
11. The total number of IP addresses and MAC IDs that were seized during the
time the FBI was operating Playpen, over and above those related to these
approximately 200 pending cases.
Items 9 and 10 are material to the defendants’ pending Motions to Suppress, in
particular to help establish that the FBI misrepresented in the NIT warrant application
the likelihood that visitors to Playpen were intentionally seeking to download or
distribute child pornography and the ability of the NIT to accurately identify legitimate
targets.

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Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 6 of 9

12. The number of IP addresses and MAC IDs obtained during the investigation
from foreign computers and the countries in which this data was obtained.
This final category of information is relevant to determining the extent to which
the FBI violated foreign law and U.S. treaty obligations by deploying malware and
distributing child pornography overseas. This information also is relevant to
determining the legality of the NIT warrant itself, which appears to have been issued in
violation of foreign laws and United States’s international legal obligations.
The Government has declined to provide any of the requested information.
III.

UNDER THE CONTROLLING NINTH CIRCUIT LAW, THE
DEFENSE IS ENTITLED TO THIS DISCOVERY.

On September 16, 2016, the Ninth Circuit issued a new opinion on the scope of
discovery required under Fed. R. Crim. P. 16 and that decision supports disclosure of
the records and information sought by this motion. In United States v. Soto-Zuniga,
2016 WL 4932319 (9th Cir. Sept. 16, 2016), the Court of Appeals reversed the
defendant’s conviction for drug trafficking because the district court had abused its
discretion by failing to order discovery of records and reports that were material to
potential pre-trial motions and defenses at trial.
The defendant in Soto-Zuniga was arrested and charged after the police stopped
his car at an immigration check point and found drugs. Id. at * 2. The defense wanted
to determine whether the police had complied with the requirements for a
constitutionally permissible check point by reviewing the check point’s stop and arrest
statistics. Id. at * 5. The defendant also sought law enforcement records related to
several third parties who may have been responsible for placing drugs in his vehicle.
Id. at * 8. The district court denied these discovery requests, finding that they were
unlikely to lead to admissible evidence and that granting the requests would needlessly
prolong the case. Id. at * 7.

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Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 7 of 9

The Ninth Circuit reversed and remanded with instructions to grant the
defendant’s discovery motions. The court also ordered the trial court to allow the
Government “a window of time” to propose protective measures for any sensitive
information and to determine whether it would prefer to dismiss the case rather than
comply with the disclosure order. Id. at * 8.
In reaching this conclusion, the court emphasized that defendants have a right to
all discovery that is “material to preparing the defense” under Fed. R. Crim. P 16. Id.
16(a)(1)(E).
Further, “[m]ateriality is a ‘low threshold; it is satisfied so long as the
information. . .would have helped to prepare a defense.” Id., citing United States v.
Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013). The court also explained that it
does not matter whether the discovery consists of evidence that would be admissible at
trial. All the defense need show is that it may assist in developing pre-trial motions or
lead to admissible evidence. Id. Indeed, as this Court has also recognized, discovery
“is material even if it simply causes a defendant to completely abandon a planned
defense and take an entirely different path.” Id.
Given this law, and the relevance of the discovery sought in this case, the
defendants respectfully request that the Court order the Government to provide that
discovery.
The defense has no objection to the Court’s issuance of an appropriate protective
order for any discovery for which it finds that the Government has legitimate concerns
about public disclosure or to address any legitimate claims of privilege.
///
///
///
///

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Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 8 of 9

IV. CONCLUSION
For the reasons stated above, the Court should grant the Motion to Compel
Discovery.
DATED this 22nd day of September, 2016.
Respectfully submitted,
s/ Colin Fieman
Attorney for
s/ Robert Goldsmith
Attorney for
s/ Mohammad Hamoudi
Attorney for

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Case 3:16-cr-05110-RJB Document 54 Filed 09/22/16 Page 9 of 9

CERTIFICATE OF SERVICE
I hereby certify that on September 22, 2016, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system which will send notification of
such filing to all parties registered with the CM/ECF system.

s/ Amy Strickling, Paralegal
Federal Public Defender Office

129

THIRD SAMPLE MOTION TO COMPEL

JUDGE ROBERT J. BRYAN

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
,
Defendant.

No. CR15-5351RJB
MOTION AND MEMORANDUM OF
LAW IN SUPPORT OF MOTION TO
COMPEL DISCOVERY
Noted: December 4, 2015
[Evidentiary Hearing Requested]

I. MOTION
by his attorneys Colin Fieman and Linda Sullivan, respectfully
moves the Court pursuant to Fed. R. Crim. P. 16(d) for an Order compelling discovery
material to the defense’s pending Motion to Suppress and Motion to Dismiss
Indictment. This motion is supported by the following memorandum of law and
attached exhibit, as well as the accompanying certification of defense counsel in
compliance with Local Rule CrR 16(i).
II. FACTS AND ARGUMENT
On September 9, 2015, the defense requested a copy of the programming code
for the “Network Investigative Technique” (NIT) that was deployed on

’s

computer. The defense is seeking a copy of the code so that its computer forensics
expert can independently determine the full extent of the information the Government
seized from

’s computer when it deployed the NIT; whether the NIT

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Case 3:15-cr-05351-RJB Document 54 Filed 11/20/15 Page 2 of 5

interfered with or compromised any data or computer functions; and whether the
Government’s representations about how the NIT works in its warrant applications
were complete and accurate. This forensic information is relevant to

’s

Motion to Suppress and a potential motion pursuant to Franks v. Delaware, 438 U.S.
154 (1978). See United States v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003)
(district court erred in denying a defendant’s motion for discovery under Rule 16 of
material relating to the reliability of a drug-sniffing dog, for purposes of a motion to
suppress); United States v. Gamez-Orduno, 235 F.3d 453, 462 (9th Cir. 2000)
(requiring disclosure on due process grounds of a report relevant to issues in a
suppression motion); see also W.D.. Wa. Local Rule CrR 16 (“It is the intent of the
court to encourage complete and open discovery consistent with applicable statutes,
case law, and rules of the court at the earliest practicable time”).
The defense has offered to enter into a protective order that would ensure that
review of the programming code is limited to the defense team and also address any
other legitimate confidentiality concerns the Government may have about disclosing the
code. However, on October 30, 2015, the Government notified the defense that it
would not disclose the code, asserting that it is “subject to law enforcement privilege.”
The Court should note that, in connection with other NIT cases, the Government
has made copies of the NIT’s programming code available to the defense for inspection
and forensic analysis. See Motion to Vacate Protective Order, exh. A at 2 (Department
of Justice (DOJ) notice and disclosure letter in United States v. Cottom, summarizing
the Government’s disclosures about the NIT “Flash application” used in that case,
including “example programming code,” and extending an offer for defense inspection
of the “compiled code for the NIT” stored on a government server). The Government’s

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Case 3:15-cr-05351-RJB Document 54 Filed 11/20/15 Page 3 of 5

refusal to disclose the code in this case is therefore inconsistent with its prior practice
and in itself cause for concern.
In addition, the defense served the Government with a supplemental discovery
letter on October 22, 2015, seeking information relevant to

’s Motion to

Dismiss Indictment. See exh. A, attached hereto (discovery request letter). The
requested information includes the total number of pictures and videos that were
downloaded or distributed from “Website A” while it was managed and controlled by
the FBI; the number of visitors to the site during that time; and records related to the
approval and supervision of the “Website A” operation.
The Government has not disputed that it can access and provide all of the data
and records identified in the October 22 request. However, it has declined to disclose
the information requested on several grounds, including relevance and “law
enforcement privilege.” 1
All of the information sought by the defense in its October 22 request relates to
the allegations of outrageous governmental conduct that are the subject of the dismissal
motion. This information is relevant to showing the extent to which the Government
distributed child pornography during the FBI’s control and administration of “Website
A” and the defense’s ability to meet its burden of showing that the Government’s
conduct offends common standards of decency to a degree warranting dismissal.
Likewise, the request for documents and records relating to DOJ’s review, approval and
supervision of the “Website A” operation are relevant to showing that the FBI’s
distribution of child pornography as part of that operation was not a mistake or
undertaken by agents acting without FBI or DOJ approval, and was in fact a course of
action approved by the Government.
The Government has made available an “offline copy” of “Website A” for defense
inspection, but the data relating to the discovery request cannot be gleaned from this copy.
1

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Case 3:15-cr-05351-RJB Document 54 Filed 11/20/15 Page 4 of 5

Finally, the discovery related to DOJ’s and the FBI’s approval and supervision
of the “Website A” operation is also relevant to rebutting specific claims the
Government has made in its Response to Motion to Suppress (Dkt. 47). There, in
arguing that agents acted in “good faith” reliance on the NIT warrant, the Government
has contended that agents “deliberately sought to satisfy the letter of Rule 41” and that
“law enforcement” concluded that the NIT warrant application complied with the law.
Id. at 21. Although the subjective beliefs and intentions of law enforcement agents are
irrelevant for purposes of the good faith exception, see, e.g, United States v. Hove, 848
F.2d 137, 140 (9th Cir. 1988), the Government is nonetheless suggesting that the Court
should consider facts related to DOJ’s internal review or approval of the “Website A”
warrants when deciding whether the good faith exception should apply. Having raised
these factual issues, the Government should not be allowed to withhold discovery that
sheds further light on them. 2
III. CONCLUSION
For the reasons stated above,

respectfully requests that the Court

issue an Order for disclosure of the records and information sought by the defense,
subject to such conditions or protections that the Court deems appropriate to address
any legitimate confidentiality interests on the part of the Government.
DATED this 20th day of November, 2015.
Respectfully submitted,
s/ Colin Fieman
s/ Linda Sullivan
Attorneys for

The Government’s response to the motion to suppress, including its good faith
argument, will be addressed fully in the defense’s suppression motion reply briefing, which is
due on December 2, 2015.
2

133

Case 3:15-cr-05351-RJB Document 54 Filed 11/20/15 Page 5 of 5

CERTIFICATE OF SERVICE
I hereby certify that on the date shown below I e-filed with the Clerk of the
Court the foregoing Motion to Compel Discovery and Memorandum in Support of
Motion, Proposed Order, and Affidavit and Certification of Defense Counsel in Support
of Motion to Compel Discovery. I used the CM/ECF system, which will send
notification of this filing to Special Assistant United States Attorney.
DATED this 20th day of November, 2015.
s/ Amy Strickling, Paralegal to
Colin Fieman
Assistant Federal Public Defender

134

EXHIBIT TO THIRD SAMPLE MOTION TO COMPEL

135

EXHIBIT A-001

Case 3:15-cr-05351-RJB Document 54-1 Filed 11/20/15 Page 2 of 2

136

EXHIBIT A-002

FOURTH SAMPLE MOTION TO COMPEL

JUDGE ROBERT J. BRYAN

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
,
Defendant.

No. CR15-5351RJB
THIRD MOTION AND
MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO COMPEL
DISCOVERY [FILED UNDER SEAL]
[Evidentiary Hearing Requested]
Noted: January 22, 2016

I. MOTION
by his attorneys Colin Fieman and Linda Sullivan, respectfully
moves the Court pursuant to Fed. R. Crim. P. 16(d) for an Order compelling discovery
relevant to the defense’s pending Motions to Suppress, Franks Motion, and
’s defense at trial. This motion is supported by the following memorandum of
law and attached exhibits, as well as the accompanying certification of defense counsel
in compliance with Local Rule CrR 16(i).
For the reasons discussed below, the defense further requests that the Court
schedule an expedited hearing on this motion.
II. FACTS AND ARGUMENT
On September 9, 2015, the defense asked the Government to provide a copy of
the programming code for the “Network Investigative Technique” (NIT) that was

137

deployed on a computer that

allegedly possessed. The Government

declined to produce the code.
On November 20, 2015, the defense filed its First Motion to Compel Discovery.
(Dkt. 54). As set forth in that motion, the defense was seeking, inter alia, a complete
copy of the code so that a forensic expert can independently determine the full extent of
the information the Government seized from

’s computer when it deployed

the NIT; whether the NIT interfered with or compromised any data or computer
functions; and whether the Government’s representations about how the NIT works in
its warrant applications were complete and accurate. (Dkt. 54).
In addition, as explained in the attached declaration of Vlad Tsyrkevich, the
complete NIT code is necessary to establish the electronic “chain of custody” for the
data that allegedly links a computer purportedly used by

to activities on

“Website A.” See exh. A, attached hereto.
The Court scheduled a hearing on the first discovery motion for December 14,
2015.
On December 4, 2015, the Government filed a brief in opposition of discovery.
(Dkt. 74). In that brief, the Government argued that the code was subject to a “qualified
law enforcement privilege” and that its disclosure would compromise pending
investigations and be “harmful to the public interest.” Id. at 15.
On December 10, 2015, the Government notified the defense that it was
withdrawing its objection to disclosing the NIT code. This agreement was
memorialized on the record at the December 14 hearing. See Exh. B (December 14,
2015, Hearing Transcript) at 2. Further, the Government stated that it would seek to
complete discovery by “the first week of January.” Id. at 36.

138

On January 5, 2016, the Government filed a Stipulated Motion for Entry of
Discovery Protective Order (Dkt. 96). The motion set forth the additional security
measures the parties had agreed to for ensuring that the NIT data remained secure and
confidential. The Court issued its NIT data protective order the same day. (Dkt. 102). 1
On January 11, 2016, the defense’s code expert, Vlad Tsyrkevich received a
password protected disc from the FBI ostensibly containing the NIT data that the
defense had requested.
Mr. Tsyrklevich made a preliminary assessment of the data on January 12 and
then notified defense counsel that the data was incomplete. The same day, defense
counsel emailed the Government and identified the missing information. The
Government has declined to provide the missing NIT data, and this motion now
follows.
III. ARGUMENT
As set forth in

’s November 20, 2015, Motion to Compel Discovery

(Dkt. 54), a complete and accurate copy of the NIT code is relevant to the pending
suppression motions, the motion to dismiss the indictment and, now, the motion
The Government had originally wanted the defense to conduct its code analysis at an FBI
facility. Defense counsel informed the Government that, according to one of the experts that
the defense was considering retaining, this arrangement would be problematic because of the
amount of time needed for analysis and the need to keep defense work product confidential.
The Government then agreed to provide the data on a disc, with such security precautions as
hand-to-hand delivery and return of the disc and password protections. It is important to note
that the Government has never indicated that discovery of the NIT code was contingent on it
being analyzed at a government facility. Nor did the Government ever inform the defense that
it would be receiving less than the complete code after having reached an agreement about the
appropriate security measures.
1

The defense has since retained a different expert, Vlad Tsyrklevich, in part because he has
previously worked as a contractor for law enforcement and intelligence agencies and has had
“top secret” clearance that would further assure the Government that the data would be handled
properly. Mr. Tysrklevich is willing to analyze the missing code components at a government
facility in New York City (where he is located) if necessary.

139

pursuant to Franks v. Delaware, 438 U.S. 154 (1978). See United States v. CedanoArellano, 332 F.3d 568 (9th Cir. 2003) (district court erred in denying a defendant’s
motion for discovery under Rule 16 of material relating to the reliability of a drugsniffing dog, for purposes of a motion to suppress); United States v. Gamez-Orduno,
235 F.3d 453, 462 (9th Cir. 2000) (requiring disclosure on due process grounds of a
report relevant to issues in a suppression motion); see also W.D. Wa. Local Rule CrR
16 (“It is the intent of the court to encourage complete and open discovery consistent
with applicable statutes, case law, and rules of the court at the earliest practicable
time”).
Further, defense analysis of the code is not only relevant to

’s

defense at trial, but necessary to verifying the “chain of custody” for the data that the
Government alleges links a computer attributed to

to activities on

“Website A.” See exh. A (Tsyrkevich Declaration) at ¶ 6; see also, e.g., United States
v. McDuffie, 454 F. App’x 624, 626 (9th Cir. 2011) (affirming grant of new trial based
on Government’s late disclosure of evidence that detective’s fingerprint was on drug
scale; court noted that the late disclosure prevented, inter alia, defendant from
conducting “any pre-trial discovery into the scale’s chain of custody”); United States v.
Brewster, 2009 WL 804709, at *4 (D. Idaho Mar. 27, 2009) (concluding that, because
Government has stated it has “abide[d] by its duties under Rule 16 . . . any relevant
records to chain of custody would have been provided to Defendant”); United States v.
W.R. Grace, 233 F.R.D. 586, 590 (D. Mont. 2005) (ordering, pursuant to Rule
16(a)(1)(E)(i) [items material to the defense] “All documents relating to the chain of
custody for” [asbestos samples]).
The Government’s failure to provide complete NIT code to the defense is a
matter of some urgency. The Court has scheduled a hearing on the pending suppression

140

and Franks motions for January 22, the deadline for all pre-trial motions is January 28,
and

’s February trial date is rapidly approaching. Accordingly, the defense

requests that the Court set an expedited schedule for responsive briefing by the
Government and also schedule a hearing on this motion for Tuesday, January 19, 2016,
if the Court’s docket allows.
IV. CONCLUSION
For the reasons stated above,

respectfully requests that the Court

issue an Order for disclosure by the Government of the complete NIT code data, as well
as any related records or information that are needed for the defense’s analysis of that
data.
DATED this 14th day of January, 2016.
Respectfully submitted,
s/ Colin Fieman
s/ Linda Sullivan
Attorneys for

141

CERTIFICATE OF SERVICE
I hereby certify that on the date shown below I e-filed with the Clerk of the
Court the foregoing Third Motion to Compel Discovery and Memorandum in Support
of Motion [FILED UNDER SEAL], Proposed Order, and Certification of Defense
Counsel in Support of Third Motion to Compel Discovery. I used the CM/ECF system,
which will send notification of this filing to Special Assistant United States Attorney.
I further certify that I delivered a copy of the above sealed documents to the
registered parties via email.
DATED this 14th day of January, 2016.
s/ Amy Strickling, Paralegal to
Colin Fieman
Assistant Federal Public Defender

142

EXHIBIT TO FOURTH SAMPLE MOTION TO COMPEL
1

JUDGE ROBERT J. BRYAN

2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7
8

UNITED STATES OF AMERICA,

9

Plaintiff,

10

v.

11

,

12

Defendant.

13

) No.  CR15­5351RJB
)
)
) DECLARATION OF VLAD 
) TSYRKLEVICH
)
)
)
)
)

14

I, Vlad Tsyrklevich, declare under penalty of perjury that:

15

1.

I have been retained by

’s defense team to conduct a forensic

16

analysis of the “Network Investigative Technique” (NIT) that was used to search for 

17

and seize data in this case.  A copy of my curriculum vitae is attached to this 

18

declaration.

19

2.

On January 11, 2016, I received a password protected disc from the FBI

20

which, according to the information I had been provided by defense counsel, would 

21

contain the programming (or “source”) code for the investigative technique.  Prior to 

22

receiving this disc, I had reviewed and agree to abide by the terms of a confidentiality 

23

agreement and protective order that had been drafted by the government. 

24
25

3.

After conducting an initial examination of the code that had been

provided by the FBI it was apparent that to me that the code was incomplete.  A brief 

26
FEDERAL PUBLIC DEFENDER

DECLARATION OF VLAD TSYRKLEVICH
(United States v 
 CR15­5351RJB) ­ 1

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Tacoma, WA 98402
(253) 593­6710

A-001

1

explanation of how NITs work and their various components follows, along with an 

2

explanation of the missing aspects of the code. 

3

4. The components of an NIT programming or source code and how they

4

work: The NIT presented by the FBI works by using an “exploit,” a piece of software 

5

that takes advantage of a software “vulnerability” in the Tor Browser program. By 

6

exploiting this software vulnerability, the NIT is able to circumvent the security 

7

protections in the Tor Browser, which under normal circumstances, prevents web sites 

8

from determining the true IP address or MAC address of visitors. After exploiting the 

9

vulnerability, the NIT delivers a software “payload,” a predetermined set of actions, to 

10

computers that receive the payload (the “host computer”).  The payload used by the FBI 

11

in this case collected and then transmitted identifying information about the host 

12

computer (including its IP address) along with a unique “identifier” used to associate 

13

the target with the identifying information that the NIT collects.  As a result, these type 

14

of investigative techniques have four primary components:

15

a.
Software that generates a payload and injects a unique identifier
into it.

16
17
18
19
20
21
22

5.

b.

The “exploit” that is sent to the target computer to take advantage
of a software flaw in the Tor Browser.

c.

The “payload” that is run on the target computer to extract
identifying information about it (such as its IP address).

d.

An additional “server component” that stores and preserves the
extracted information and allows investigators to access it.

What the FBI Produced and What is Still Missing: The government

23

has provided us with one component of the payload (component “c”).  However, it is 

24

unclear from the limited data provided so far whether the payload that has been 

25

provided was the only payload associated with the NIT or whether other payloads were 

26

executed.  Moreover, the FBI has not furnished  component “a” (the server component 
FEDERAL PUBLIC DEFENDER

DECLARATION OF VLAD TSYRKLEVICH
(United States v 
 CR15­5351RJB) ­ 2

144

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Tacoma, WA 98402
(253) 593­6710

A-002

1
2
3
4

that generates the payload and injects an identifier); “b” (the exploit component); or “d” 
(the data preservation component).  It is all of these components in combination, not 
just one or another of them, that constitutes a network investigative technique.  
6.

Why the Missing Components are Needed for a Complete and

Accurate Analysis:  The accuracy and potential admissibility of the evidence collected 

5

by the NIT depends on the accuracy of the data the government claims is associated 

6

with the computer that 

7

defense counsel has informed me that he is seeking to determine if the NIT used in this 

8

case operated in the manner described in various warrant applications and whether its 

9

execution may have compromised any data or functions on the target computer. 

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

 allegedly used to access “Website A.” In addition, 

However, the materials provided by the FBI are insufficient to make these 
determinations or verify that the data extracted from the target computer is accurate for 
the following reasons: 
The software that generates a payload and injects a unique identifier into it 
(component “a”) is critical to understanding whether the unique identifier used to 
link a defendant to access of illegal content is actually unique.  If the identifier is 
generated incorrectly, it could cause different users to be incorrectly linked to 
each other’s actions. It is important to note that errors in the use of cryptographic 
components are pervasive in modern software. The proper generation of unique 
identifiers hinges on the correct use of a “Pseudo­Random Number Generator,” a 
fundamental cryptographic technology that is frequently misused.  Without the 
missing data, I am unable to make a determination about these issues.
As noted, the “exploit” used in the NIT (component “b”) is intended to execute 
on the computer that is being identified.  Analyzing and understanding the 
exploit component of the NIT is critical to understanding whether the payload 
data that has been provided in discovery was the only component executing and 
reporting information to the government or whether the exploit executed 
additional functions outside of the scope of the NIT warrant.  Without the 
missing data about the exploit component of the NIT, I am unable to make a 
determination about these issues.
In addition, the server component that stores the identifying information returned 
by the payload (component “d”) must faithfully store and reproduce the data it 
was sent. The correct use of data storage primitives and the programming 
practices used to avoid data corruption or tampering make analyzing this 
FEDERAL PUBLIC DEFENDER

DECLARATION OF VLAD TSYRKLEVICH
(United States v 
 CR15­5351RJB) ­ 3

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component of the NIT essential to understanding and verifying the digital “chain 
of custody” of information derived from the NIT. Without the missing data, I am 
unable to make a determination about these issues.

1
2

7. The importance of this data to

3

’s preparation of his defense is hard 

4

to overstate because I am aware of a previous instance in which an NIT resulted in  

5

indiscriminate targeting.  In August 2013, all of the websites hosted by “Freedom 

6
7
8
9
10

Hosting” ­­ a service, run from servers in France, that hosted websites accessible to 
users of the Tor network ­­ began serving an error message with hidden code embedded 
in the page.1 That code was specifically designed to exploit a security flaw in a version 
of the Firefox web browser used to access Tor hidden servers.2 According to an FBI 
agent who later testified in an Irish court, the Freedom Hosting service hosted at least 
100 child pornography websites.3 But the service also hosted a number of legitimate 

11

sites, including TorMail, a web­based email service that could only be accessed over 

12

the Tor network, and the Hidden Wiki, which one news site described as the “de facto 

13

encyclopedia of the Dark Net.”4 Even though these sites were serving lawful content, 

14

the FBI’s “watering hole” attack was performed in an overbroad manner, delivering a 

15

NIT to visitors of all of the Freedom Hosting sites, not just to visitors of sites that were 

16

engaged in the distribution of illegal content.  It is therefore important to 

17
18

’s 

defense and trial preparations to determine whether a similarly indiscriminate “watering 
hole” attack could have affected this case.

19

13th
DONE this ___ day of January, 2016.

20
_________________________________
Vlad Tsyklevich

21
22
23
24
25
26

1

 See Kevin Poulsen, FBI Admits It Controlled Tor Servers Behind Mass Malware Attack, Wired (Sept. 13, 2013), 
http://www.wired.com/2013/09/freedom­hosting­fbi/.
2
 See Goodin, Attackers Wield Firefox Exploit to Uncloak Anonymous Tor Users, Ars Technica (Aug. 5, 2013), 
http://arstechnica.com/security/2013/08/attackers­wield­firefox­exploit­to­uncloak­anonymous­tor­users/.
3
 Poulsen, FBI Admits It Controlled Tor Servers Behind Mass Malware Attack, supra.
4
 Patrick Howell O’Neill, An In­Depth Guide to Freedom Hosting, the Engine of the Dark Net, The Daily Dot 
(Aug. 4, 2013), http://www.dailydot.com/news/eric­marques­tor­freedom­hosting­child­porn­arrest/.
FEDERAL PUBLIC DEFENDER

DECLARATION OF VLAD TSYRKLEVICH
(United States v 
 CR15­5351RJB) ­ 4

146

1331 Broadway, Suite 400
Tacoma, WA 98402
(253) 593­6710

A-004

Vlad Tsyrklevich

http://tsyrklevich.net
vlad@tsyrklevich.net

(858) 722-6490

Skills
Languages: C, Ruby, Assembly (x86/x64, PPC, ARM, MIPS, SPARC), C++/Objective-C, Java, Python, JavaScript

Work Experience
•

Square
Security Engineer

San Francisco, CA and New York, NY
04/2012 – Present

– Low-level iOS and Android platform analysis in order to develop custom security assurances and anti-RE
measures
– Develop a complex client-server software protection scheme integrating with an external hardware module
– Audit services in production datacenters and work with the platform team to fix flaws and introduce new
security measures
– Consult with software engineering teams on secure application development, PKI, and network architecture

•

Irdeto
Senior Reverse Engineer

San Francisco, CA
11/2011 – 04/2012

– Analyze and defeat custom protection schemes implemented in user- and kernel-land on Windows
– Work with partners on hardening their copy-protection mechanisms against reverse engineering
– Evaluate both in-house and third-party anti-RE solutions for use by our partners and in our software

•

SPARTA, Inc.
Security Researcher

Centreville, VA
05/2006 – 11/2011

– Lead new research efforts in reverse engineering, vulnerability discovery and exploit development across
Windows, Linux, and embedded platforms
– Analyze undocumented network protocols and file formats in order to replicate behavior, bypass protection
schemes and discover vulnerabilities
– Reverse engineer armored and packed binaries and bypass anti-reverse engineering protection schemes
– Develop low-level applications with high-speed, high-stealth and high-reliability considerations

Open Source
• Metasploit Framework

2005 - 2006

– Develop payloads for Windows, Linux, Solaris and other operating systems across multiple architectures
– Port public exploits and write new exploits, shellcode encoders, nop generators and backend plug-ins

Education
University of California, Berkeley
B.A. Applied Math with a focus in Computer Science; GPA: 3.6

Presentations
• Co-speaker at Blackhat USA 2007: Single Sign-On for the Internet: A Security Story
• Speaker at Toorcon San Diego 2006: Polymorphic Shellcode at a Glance

147
1

A-005

1

EXHIBIT TO FOURTH SAMPLE MOTION TO COMPEL
1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

2
.
3
4

UNITED STATES OF AMERICA,

5
6
7
8

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
,
Defendant.

Docket No. CR15-5351RJB
Tacoma, Washington
December 14, 2015

9
10
11

TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE ROBERT J. BRYAN
SENIOR UNITED STATES DISTRICT COURT JUDGE

12
APPEARANCES:
13
For the Plaintiff:

KEITH BECKER
ANDRE PENALVER
U.S. Department of Justice
1400 New York Avenue NW, 6th Floor
Washington, DC 20530

For the Defendant:

COLIN FIEMAN
LINDA SULLIVAN
Office of the Public Defender
1331 Broadway, Suite 400
Tacoma, Washington 98402

Court Reporter:

Teri Hendrix
Union Station Courthouse, Rm 3130
1717 Pacific Avenue
Tacoma, Washington 98402
(253) 882-3831

14
15
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18
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20
21
22
23

Proceedings recorded by mechanical stenography, transcript
produced by Reporter on computer.

24
25

148

B-001

2

1

Monday, December 14, 2015 - 10:30 a.m.

2

(Defendant present.)

3

THE CLERK:

All rise.

This United States District

4

Court is now in session, the Honorable Robert J. Bryan

5

presiding.

6
7

THE COURT:

Please be seated.

This is United States versus

Good morning.
, No. 15-5351.

8

comes on for argument today on the defendant's motion to

9

compel.

The defendant is present with his attorneys,

10

Ms. Sullivan and Mr. Fieman.

11

government?

12

It

And is it Mr. Becker for the

In preparation for this hearing, I have read the motion

13

and memorandum in support of the motion, and the government's

14

response and the defendant's reply.

15

motion to dismiss the indictment, which was referenced in the

16

pleadings.

17

I have also looked at the

So I think we are ready to proceed here.

Okay, Mr. Fieman, this is your motion, you may proceed.

18

It is my understanding that a good part of the original motion

19

has been resolved.

20

MR. FIEMAN:

Yes, thank you, Your Honor.

21

As indicated in my responsive pleading, the government

22

notified us on Thursday that they were in fact willing to turn

23

over the NIT code, which we appreciate.

24

resolves a significant portion of what we were prepared to

25

address today.

That, I think,

And just to update the government as well, we

149

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1

are in the process of retaining an expert on code analysis and

2

expect that that part of the discovery will proceed smoothly.

3

So, Your Honor, what we really have left is a couple of

4

issues, which are still significant.

5

those.

6

I would like to address

The first remaining category of discovery that is still

7

outstanding is information regarding the extent of the

8

distribution of child pornography while the FBI was operating

9

the website.

I do think it is an important distinction here.

10

I notice in the government's responsive reply at page 12, that

11

they characterize the situation as one where the government

12

allows the website to continue operating for what they

13

characterize as a brief 14-day period.

14

is all that brief.

15

dealing with a situation where -- for example, the website was

16

under surveillance, and the FBI was developing probable cause

17

or inquiring into the investigation, watching the activities

18

of others.

19

website to continue; they actively operated and took control

20

of it.

21

that sort of passive plan does not capture, and I think it's

22

certainly important for understanding the thrust of our motion

23

to dismiss the indictment.

24
25

I am not sure 14 days

But really my main concern is we are not

This was not a situation where they allowed the

So there's a certain amount of ownership here that

Once the FBI took control of the server on February 19th,
they owned it.

They had the choice of shutting it down at

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1

that point, investigating through whatever records were

2

already in the server.

3

to continue to operate it but blocking access to the actual

4

illicit content.

5

They also had the choice, for example,

We have seen other cases where they have left certain

6

links or descriptions up, or suggestive material, but have

7

blocked user's ability to actually download or view the

8

illegal content.

9

feather, because during that entire 14-day period that this

So this is really a bird of a different

10

was in fact an FBI website, there was continuous posting and

11

distribution and redistribution of child pornography.

12

do believe that's unprecedented, at least in my experience.

13

And I would note, Your Honor, that in terms of the

14

legality of this whole thing, and not to start arguing the

15

motion to dismiss, but really just in terms of why we are

16

seeking information about the extent of this distribution is

17

because there are a number of legal permissions which preclude

18

the government from doing this.

And I

19

In fact, one of them was cited, and I overlooked it

20

previously in the government's briefing, at page 4, note 2,

21

under 18 U.S.C. 3509(m), the government is supposed to retain

22

custody and control of any child pornography that is seized

23

during an investigation.

24

happened here.

25

And of course that's not at all what

So Your Honor, I really defer to the Court on this,

151

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1

because ultimately what we are driving at is we want a factual

2

basis to support our motion.

3

much does the Court need?

4

And really the question is, how

The undisputed facts I think at this point are that there

5

were over 200,000 members on this site; that tens of

6

thousands -- I estimated approximately 80,000 visits were paid

7

to the site during the period that it was under FBI control.

8

And we have used various adjectives or numbers to describe the

9

quantity of child pornography that was available in various

10

subdirectories, subforms on the site as being thousands of

11

images, a massive quantity of images, massive quantity of

12

videos.

13

I think in terms of the extent of distribution, the Court

14

could safely assume from all that that it was indeed a massive

15

quantity of illicit content.

16

getting more exact figures, if the Court is going to make

17

findings about how extensive this operation was and the

18

degree, we submit, to which the government was violating the

19

law in various respects, it may be important to have a more

20

specific count, and that information in terms of how many

21

people actually visit the site.

22

probably visit that site but did not necessarily look at

23

content, illicit content.

24
25

But our main thrust in terms of

And we know that many people

And it is really up to the government at this point I
think to choose their poison.

152

If they want to disclose the

B-005

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1

numbers of people who actually went into the various

2

subdirectories to look at content, and how many visitors were

3

doing that, I think that may be helpful.

4

than happy to stand on the assumption that there was a massive

5

amount of material distributed.

6

Otherwise I am more

What I do not want to happen, though, and what I'd ask the

7

Court to one way or another foreclose, is to get to the

8

suppression hearing and potentially having witnesses for the

9

government trying to minimize how much content was

10

circulating, because I don't think from what we've just seen,

11

in terms of the characterizations in the government's own

12

pleadings, that it was a minimal amount of illicit content.

13

If the government does not want to essentially concede or

14

stipulate that there were tens of thousands of visitors, and

15

that there was a massive quantity of child pornography in

16

circulation, I do think we need more specific information.

17

Now, Your Honor, again, going on to the remaining issues,

18

the government's memoranda and sort of internal assessment --

19

assessment of both the legality of running an undercover

20

online operation like this, and also the Rule 41 issues,

21

whether the NIT warrant in particular was legal, it is again

22

in some sense the government's choice here.

23

viewing the same facts in a slightly different perspective.

24
25

And we seem to be

I believe -- and I don't want to speak for the government,
but what I believe from their pleadings is that they are

153

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1

taking the position that the fact that there was internal

2

Department of Justice or FBI counsel review of the NIT warrant

3

is relevant to the good faith analysis in terms of the

4

exception to the suppression rule.

5

that is correct, it would normally be the case.

6

And as a legal principle,

But we are in a slightly different situation here because

7

one of our primary suppression arguments is specific to Rule

8

41 issues, and that is whether there was a deliberate

9

disregard of the law or Rule 41, specifically.

And that has

10

nothing to do with the good faith exception.

11

whether or not the government knowingly proceeded to submit a

12

warrant application that it was aware was inconsistent with

13

the law.

14

It is just

Now, I believe again from the submissions that we've made

15

to the Court, and what is publicly available in terms of DOJ's

16

own analysis of the scope of Rule 41 and the sensitivity of

17

online undercover operations, that we have enough in the

18

record to say that there's no way that this was some sort of

19

rogue operation, or DOJ did not make a conscious choice to

20

pursue the NIT warrants despite the fact that at best the Rule

21

41 arguments that have been offered in justification of that

22

warrant are questionable.

23

Now, then the question is again, what are we going to see

24

at the suppression hearing?

25

NIT warrant in particular, and the whole website operation,

154

It is simply a matter that the

B-007

8

1

continued operation by the FBI, were the various points

2

reviewed and approved internally?

3

given.

4

establishes the deliberate nature of the actions.

5

is up to the Court to determine whether they were legal or

6

not.

7

We can take that as a

Frankly, I believe that helps our argument.

That
And then it

What I don't want to happen is for the government then to

8

put up witnesses to start talking about that internal process,

9

as they characterize them, consultations, in an effort to

10

persuade the Court, well, a certain number of DOJ attorneys

11

signed off on this, Your Honor, and therefore it must be

12

legal.

13

And if we are going to start drifting in that direction,

14

then I would be very much surprised, given what we know about

15

DOJ's own analysis of Rule 41, that there wasn't some dissent

16

or discord or other things going on in that consultation

17

process that we should be allowed to explore.

18

If that is where the government is heading for purposes of

19

the suppression hearing, then as we submitted in our reply

20

briefing, that seems to me to be a waiver of any privileges

21

that they are claiming.

22

So Your Honor, I really think at this point, having

23

resolved the programming code issue, our request is to put it

24

to the government, a choice on these two issues.

25

One, if there isn't going to be any disagreement that

155

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1

there were tens of thousands of users accessing child

2

pornography through the various subdirectories, and that a

3

very large -- a massive amount of illicit content was

4

distributed, and the Court deems that sufficient to make

5

findings, then we can probably leave it at that.

6

If there's going to be any issue about the scope of it, or

7

if the Court believes more specific numbers are needed, then

8

we'd ask the Court to grant our motion.

9

I would just note, I think we addressed this briefly, we

10

cannot get that information, at least as far as -- from the

11

virtual website, at least as far as I was able to explore what

12

was on there and what was told to me by the FBI agent and the

13

AUSA, who were in the room with us, which is basically what

14

you see is what is available through this virtual website.

15

Most or all the information we are seeking is on the

16

government's server behind the website.

17

to that.

18

We do not have access

And then the same choice that I indicated comes to this

19

issue of the internal consultations.

There was simply an

20

approval process for this entire operation and the NIT

21

warrant.

22

discovery on that if there's going to be any attempt by the

23

government, either in its responsive briefing or at the

24

hearing, to suggest -- to go into the details of the

25

consultations to suggest that that is somewhere out under --

I do not think we will next -- we will need more

156

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1

reenforces or underscores the legality of what we are

2

challenging, then we feel we are entitled to full disclosure

3

of all those internal consultations.

4
5
6
7
8
9

Thank you, Judge.
THE COURT:

Thank you, counsel.

Mr. Becker.
MR. BECKER:

Thank you, Your Honor.

May it please the Court, I think a bit lost here in the
argument to this point is the legal background pertaining to

10

Rule 16 and criminal discovery, and then the good faith

11

exception, which is really the premise on which the defense

12

makes its other request.

13

The defendant's motion here really seeks to turn the

14

criminal discovery process on its head.

15

information that is not material to his defense of the actual

16

charges in this case, information that is specifically

17

exempted from production by Rule 16 itself, and on a theory

18

that has been -- a theory of discovery that has been

19

specifically rejected by the Supreme Court.

20

By requesting

So let me go through with that first.

As the Court is

21

well aware, discovery pursuant to Rule 16 must be material to

22

a defendant's defense.

23

set forth specific facts to show that materiality.

24

16(a)(2) specifically excludes the discovery or inspection of

25

reports, memoranda, or other internal government documents

It is the defendant's obligation to

157

Rule

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1

made by an attorney for the government or other government

2

agent in connection with investigating or prosecuting the

3

case.

4

in United States v. Armstrong, which we cited in our

5

responsive briefing.

That rule is amplified by the Supreme Court's decision

In that case the Supreme Court interpreted Rule 16 in a

6
7

way that forecloses the sort of requests for internal

8

government memoranda and deliberations that are being made

9

here.

The Supreme Court interpreted defense, under Rule 16,

10

to be limited to claims that refute the government's arguments

11

that the defendant committed the crimes charged.

12

means defense on the merits, a defense to the evidence that is

13

going to be presented by the government at trial pertaining to

14

him.

15

Defense

In Armstrong, the defendant raised a selective prosecution

16

claim similar to the sort of motion to dismiss based on this

17

allegation about outrageous government conduct, as made here,

18

and requested discovery about the government's prosecutor's

19

strategy.
THE COURT:

20

You don't think that the question of

21

outrageous government conduct, if not granted on a motion,

22

would not be presented to a jury at trial?
MR. BECKER:

23

I don't believe that it could be, Your

24

Honor.

It is not a merits defense.

25

the sort of defense that could be submitted to a jury at

158

And I don't believe it is

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1

trial, nor has the defendant suggested that or submitted any

2

sort of briefing making that argument that I know of.

3

Now, of course, we haven't yet had our opportunity to

4

respond to the defendant's motion to dismiss.

5

is due on the 21st.

6

claim.

7

That response

We will respond on the merits of that

THE COURT:

I am thinking ahead to the trial, and if

8

that is not a legal defense to be presented to a jury, it

9

might, in the hands of a good lawyer, lead to a jury

10

nullification, if not an argument to -- you know, the jury

11

could decide this is just unfair and determine not to convict.

12

MR. BECKER:

Those seem like good reasons for the

13

Court to properly instruct the jury not to consider those

14

sorts of arguments or those sorts of considerations, Your

15

Honor, which are not merit defenses here.

16

The defendant is charged with receiving and possessing

17

child pornography.

And ultimately the fact that the website

18

that he accessed was under government control, at "a" time

19

when he accessed it, and of course the defendant accessed that

20

website and registered on it long before the government seized

21

it.

22

website while it was under government control, it has no

23

bearing whatsoever on the merits of receipt and possession

24

charges based upon information found on his computer pursuant

25

to a search.

But the mere fact that the defendant also accessed the

159

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1

The motion to dismiss the indictment here, we would argue,

2

is so totally separate and apart from any sort of merits

3

defense.

4

us back to the legal framework, because I really do believe

5

that Armstrong forecloses these sorts of requests.

6

if we look at the request -- I can quote particular language

7

from Armstrong if the Court thinks it is helpful.

8

United States 456, pages 462 and 463.

9

defense argument in that case, the Supreme Court stated

10

"because we conclude that in the context of Rule 16 the

11

'defendant's defense' means the defendant's response to the

12

government's case-in-chief.

13

a general matter, the concept of a 'defense' includes any

14

claim that is a 'sword' challenging the prosecution's conduct

15

of the case, the term may encompass only the narrower class of

16

'shield' claims, which refute the government's arguments that

17

the defendant committed the crime charged."

18

But even in that event, Your Honor, I want to bring

But even

It is 517

In rejecting the

While it might be argued that as

So I won't belabor that point any further, Your Honor, but

19

that's the Supreme Court very directly saying defense means

20

what evidence is presented at trial and how are you defending

21

against it, not an attack on the conduct of a government

22

investigation generally.

23

Now, in terms of the seizure of the website, first let's

24

get some facts correct.

The FBI -- the government did not

25

create this particular website at issue.

160

It operated for six

B-013

14

1

months before it was seized by law enforcement.

2

for another two weeks under law enforcement control.

3

It operated

Now, I don't believe that a policy argument about whether

4

or not the government should interdict particular criminal

5

activity by particular criminals is relevant and that it in

6

fact brings to bear some potential serious separation of

7

powers issues in terms of the government's discretion to

8

investigate particular criminals using particular

9

court-authorized investigative techniques.

10

But that aside, this is not something the government

11

created.

12

this happened, is it possible that the government could have

13

shut that website down the day it was seized?

14

that's possible.

15

how this site operated.

16

And if we are going to talk about the reasons why

Yes, of course

But that ignores the rest of the context of

This was a site that was created by its users.

It is an

17

online bulletin board.

It is helpful, I think, in

18

understanding that to think of an offline bulletin board, just

19

how does a regular bulletin board work?

It is set up and

20

placed on a wall by some administrator.

Then the users are

21

responsible for posting messages onto it and replying to those

22

messages.

23

context of whatever categories are set up by the person who

24

first sets up that bulletin board.

25

that is how this works.

The users post messages and content within the

161

User-provided content,

B-014

15

1

So it was and is the users of this particular website, in

2

the online context, who populated its content with messages,

3

including messages that had images and videos of child

4

pornography in them, and also messages that provided links,

5

that is online links to other places on the Internet where its

6

users could go and download child pornography using passwords

7

provided by the users of the site.

8

that was trafficked on this site was user-created and

9

user-tracked.

10

So the child pornography

I think the use of the term "distribution" is loose and

11

not specific enough to the context here of a website whose

12

content was user-populated.

13

So again, there's no dispute here that as of the time the

14

government seized the site, and for the next two weeks, it was

15

possible and users did, like

16

pornography through that website.

17

won't be in dispute at any hearing on the motion to dismiss.

18

, access child
That is not in dispute and

The defense is well aware of this.

They have filed their

19

motion to dismiss largely based upon that premise.

And we

20

don't believe that further discovery of the users, of other

21

users than the defendant, is necessary in order to make that

22

sort of argument, to the extent that information about other

23

users and whether they downloaded images or not is even

24

attainable.

25

end up in a difficult situation.

Of course, again, if we don't define our terms we

162

Users might save child

B-015

16

1

pornography that they accessed on their screen.

2

to another website and download it or not.

3

They might go

We are not disputing -- the government is not disputing

4

that child pornography was accessible during the period that

5

the site was operated.

6

by Your Honor, that further information is necessary.

7

THE COURT:

We don't think, and absent a finding

Do you have -- what they asked for here

8

was, as I understand it, the total number of pictures and

9

videos that were downloaded and distributed, and the number of

10

visitors to the site during the subject time.

11

information you have?

12
13

MR. BECKER:

The number of visitors to the site

during that time period is information that we would have.

14
15

Is that

THE COURT:

Why don't you give it to them; what's the

difference?

16

MR. BECKER:

The difference, we don't believe that it

17

is relevant and material in the case, Your Honor.

18

position.

19

That's our

That information is available.
THE COURT:

I am always suspect of a government

20

lawyer that says something is not material or relevant to the

21

defense.

22

that question.

23

have to come to that question with the mind and background of

24

a seasoned criminal defense lawyer to make that determination.

25

You are not in a very good position to determine
You have to put yourself in their mind.

MR. BECKER:

You

Well, here, Your Honor, the

163

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1

determination is in the context of a specific motion that has

2

already been filed for specific reasons.

3

I certainly understand the difficulty in a prosecutor

4

taking the mind-set of a defense counsel.

5

exactly in that context here.

6

relevant to the motion they have already filed, which already

7

alleges outrageous government conduct based on information and

8

actions they know occurred, which is that the government

9

seized and continued to operate the website for two weeks, and

10
11

But we are not

The defense says this is

that child pornography continued to be available.
So I absolutely understand Your Honor's admonition on that

12

point, but I do think the context of this request makes it a

13

bit different.

14

That said, if the Court finds that we should provide the

15

number of visitors to the site, we can provide that

16

information.

17

We will comply with the Court's order.

THE COURT:

Do you have also the total number of

18

pictures and videos that were downloaded or distributed from

19

that website?

20

MR. BECKER:

That information is not available for a

21

variety of reasons, Your Honor, that have to do with how the

22

site operates and how individual users could have and would

23

have used it.

24
25

So when I access a web page, there are innumerable ways in
which I might save that material to my computer.

164

I might

B-017

18

1

right click a picture and click "save."

2

shot of a particular image and save it that way, similar to

3

taking a picture of your computer screen.

4

I might take a screen

There's just not a way for the government to give an

5

accurate count of exactly how each user interacted with the

6

site and to what extent the user saved images that were

7

available.

8

Further, because of the way the administrator set this

9

site up, there were links available to external websites that

10

contained child pornography, which the users could then go to

11

and download from.

12

government control, and so we are not able to provide

13

information as to what an individual user might have done with

14

those sorts of images or videos.

15

Those external websites were not within

THE COURT:

You know, Mr. Becker, I might say if this

16

was only this defendant and the argument was outrageous

17

government conduct, it would be a much different argument than

18

if this was 10,000 people, in terms of whether it was

19

outrageous or not.

20

I mean, it's one thing to go after one person that you

21

think is committing a crime, and something different to go

22

after everybody under the sun under the same premise.

23

MR. BECKER:

Your Honor, respectfully, I am not sure

24

that I follow that rationale, because if there's one person

25

committing a crime, or 10,000 people committing crimes, we, as

165

B-018

19

1

the government, have an obligation to investigate all 10,000,

2

not just one.

3

So I think it is a logical fallacy to say here that

4

somehow it is the government's fault that thousands of

5

criminals gathered at this website to exploit children via the

6

trafficking of child pornography.

7

create that.

8

trafficking in criminal activity in order to try to actually

9

find, identify, and bring to justice the people who were using

10

The government responded to this massive website

it criminally.

11

The government did not

And so --

THE COURT:

12

off of this website?

13

MR. BECKER:

How many people have you charged in this,

I can provide that information, Your

14

Honor.

15

forum given the ongoing nature of the investigation, but I do

16

have numbers that I can provide to the Court.

17

I am leery of providing that information in a public

But again, my point is, Judge, this was a massive scope of

18

criminal activity which required the government's response

19

here.

20

who see users gathering in such a massive scale in a way that

21

makes -- and for the record, we are talking about the

22

anonymous Tor network here.

23

a way that makes their identification extremely difficult.

24
25

It is hard, I think, to say to prosecutors and agents

They are gathering in a means and

So could the government have just shut that website down
as soon as it was seized?

166

That is possible.

That is one

B-019

20

1

thing the government can do.

2

those criminal users, who are using this website in order to

3

traffic in child pornography amongst themselves, simply go and

4

set up another website and continue to engage in the exact

5

same behavior that continues to exploit children in the same

6

way.

7

And what happens next?

All of

The only way for the government to actually stop this sort

8

of conduct is to take action, to identify and apprehend the

9

perpetrators.

That is what the government did in this case.

10

The government explained that to the judges who authorized the

11

techniques, both in the network investigative technique

12

affidavit and in the wiretap affidavit pertinent to the

13

investigation.

14

It is unfortunate that there are so many thousands of

15

criminals who act similarly, but that is not attributable to

16

the government.

17

engage in that behavior.

18

That is attributable to the criminals who

I apologize, Your Honor, if my tone is too forceful.

19

have only appeared in your courtroom twice, Your Honor.

20

is what I do.

21

particularly passioned about as a prosecutor.

22

disrespect whatsoever to the Court.

23

I
This

It is obviously something that I am

THE COURT:

I understand, Mr. Becker.

I mean no

The other side

24

of that coin obviously is that investigations have to be

25

within the limits of the Constitution, no matter how bad the

167

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21

1

crime is.

2

MR. BECKER:

Absolutely, Judge.

Absolutely.

And

3

here the NIT was authorized by a magistrate; the wiretap was

4

authorized by a United States District Court judge with full

5

knowledge and understanding of the overall investigative

6

strategy.

7

THE COURT:

8

MR. BECKER:

9
10

Okay, go ahead.
So I will move, Judge, to the good faith

side and the internal government deliberative documents
pertaining to that.

11

So the good faith argument here is premised on law

12

enforcement's objectively reasonable reliance upon the

13

authorization of a magistrate.

14

and will ask, the Court to find that the good faith exception,

15

the Leon exception applies.

16

And the government has asked,

The good faith exception is not based upon review of

17

internal government deliberative memos.

18

magistrate authorizing the NIT warrant in this case, as did

19

occur.

20

internal government deliberative documents.

21

It is based upon a

We don't believe that in any way brings to bear

We certainly do expect there would be testimony or

22

evidence that the affiant in this case consulted with an

23

Assistant United States Attorney before presenting the warrant

24

to the magistrate, as is the required procedure in every

25

single United States Attorney's office that I am aware of.

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And I have been in about 25 different districts around the

2

country.

3

That is obviously a very different premise than anything

4

that brings to bear internal government deliberative memos.

5

So it seemed to me that what I heard today from the defense is

6

that we don't have an issue here that requires compulsion of

7

any of those memos, unless and until there was some argument

8

other than that.

9

position, or are in that position, Your Honor.

10

And I don't believe we'll be in that

So I do expect evidence that the NIT warrant was submitted

11

to, approved by an Assistant U.S. Attorney.

12

there to be any presentation that somehow there was also other

13

deliberations by the Department of Justice that bear on that

14

good faith inquiry.

15

I don't expect

So I am a little bit at a loss, I guess, to speak any more

16

than that, to the sort of speculative concern that that might

17

happen.

18

THE COURT:

Let me ask you something here:

In light

19

of the statutes that makes some things undiscoverable, if you

20

present evidence at a suppression hearing, for example, that

21

the warrant was approved by a United States Attorney, aren't

22

you opening up that whole thing, the whole thing they are

23

looking for?

24

that particular statutory or rule privilege, don't you have to

25

just say here's the document, and does it pass constitutional

Or don't you have to -- if you want to protect

169

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1

muster without a bunch of evidence about the process that it

2

went through?

3

MR. BECKER:

I don't believe that is correct, Your

4

Honor.

5

Circuit, as elsewhere, that one of the factors in the good

6

faith analysis is whether or not a law enforcement agent

7

consulted with a prosecutor before seeking the warrant.

8

don't believe that the mere fact that that occurred brings to

9

bear internal deliberations of government attorneys.

10

It is a well-established principle in the Ninth

I

I think the only means in which, or way in which I think

11

that might bring to bear internal deliberations would be if

12

there were a Brady request, for example.

13

were to request Brady material about whether any government

14

lawyer told the affiant that the warrant was not legal, and if

15

there were materials responsive to that request.

16

event we might need to disclose them.

17

So if the defense

In that

But outside that context -- that sort of context, Your

18

Honor, no, just the mere factor of having checked with a

19

prosecutor doesn't then bring to bear other internal

20

deliberative memos.

21

THE COURT:

22
23

We just don't think that follows at all.
Why is that even relevant if there's an

attack on the affidavit supporting the search warrant?
MR. BECKER:

Well, again, the Ninth Circuit has

24

identified that as one factor in the analysis.

25

will evaluate:

So the Court

did the law enforcement agent act in

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1

objectively reasonable reliance on the authorization of the

2

magistrate?

3

agent's reliance was objectively reasonable, having run it by

4

a prosecutor, consulted with an attorney, is one factor the

5

Ninth Circuit says the Court should consider, and an important

6

factor the Ninth Circuit says this Court should consider.

7

So in determining whether the law enforcement

THE COURT:

That's on the other end of the analysis,

8

it sounds like.

You don't get into the good faith exception

9

unless the underlying warrant was not a good warrant.

10

MR. BECKER:

11

THE COURT:

12
13

That's correct, Your Honor.
You are not submitting that here, are

you?
MR. BECKER:

No, absolutely not, Your Honor.

And

14

again, good faith only comes into play if the Court determines

15

that the warrant did fail legally.

16

We are not conceding that.

This is just -- this is what

17

the defense says this particular set of information is

18

relevant to, and that's why we are arguing it in that context.

19
20

So Your Honor, if the Court has no further questions for
me, I will rest for now.

21

THE COURT:

22

MR. FIEMAN:

I don't.
Just briefly, Your Honor.

I would like

23

to start with the last point first, in terms of how the good

24

faith argument and the deliberate violation of Rule 41 that we

25

are alleging are just going to play out at the hearing.

171

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1

I just want to be clear on the record, because I don't

2

want to get to the hearing and have this part of our

3

presentation or our strategy come as a surprise to the

4

government, because I don't think any of us is going to be

5

well served by that.

6

In my view, if the government is electing not to turn over

7

any of the consultation materials, and they want to stand on

8

the fact that the NIT warrant was reviewed and approved at

9

some point by an Assistant United States Attorney, we'll take

10

that.

11

themselves into a corner.

12

Because in my firm view, they are just backing

What we did not want was the government to come in here

13

and say, well, this was prepared by an FBI agent, and although

14

their subjective knowledge isn't really relevant and good

15

faith is based on what a reasonable author should know about

16

the law, well, Your Honor, it was reviewed by an Assistant

17

United States Attorney and therefore good faith should apply.

18

Our whole point is that DOJ has, from start to finish,

19

engaged in deliberate violations of Rule 41 and deliberate

20

violations of the law when it comes to trafficking and child

21

pornography.

22

the path we elected to follow, and then it is up to the Court

23

to determine whether it was legal, that's fine.

24

to be staking out a position that somehow these consultations

25

are going to help them on the good faith prong here.

As long as they are going to say, yes, this is

172

But they seem

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1

The ultimate answer is already in our briefing.

The good

2

faith exception is essentially foreclosed when it comes to

3

reliance on a warrant when the government itself is

4

responsible for the defects in the warrant.

5

talking about some kind of close probable cause determination

6

where reasonable minds might differ about the facts and there

7

was an honest representation of information in the warrant

8

that the judge just happened to decide differently from a

9

reviewing judge.

We are not

Our premise here is that this entire

10

operation is ripe with misleading and false statements and was

11

done in deliberate violation of the policies that DOJ has

12

about the parameters of Rule 41, and ultimately lead to what

13

appears to be an unprecedented engagement in illegal activity

14

in terms of distribution from the website.

15

That is a very unusual set of facts.

And I think it is

16

very important, before we start squabbling at the suppression

17

hearing about where certain issues are going, that I at least

18

make that statement to the Court and the government about what

19

our intentions are.

20

If the government at this point wants to assert that we're

21

applying privilege and their condition is we are simply going

22

to stipulate or state that this NIT warrant was approved by a

23

DOJ attorney at some point and we leave it at that, we'll take

24

that.

25

We'll take that, Your Honor.

Now, Your Honor, in terms of just -- the other points in

173

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1

terms of the remaining disclosure about activity on the site,

2

one premise here I think we need to just put aside completely

3

is that the government keeps presenting to the Court the

4

notion that the alternative was to either shut down the

5

website or do an investigation that involved distribution of

6

child pornography.

7

And that is simply not the case.

There are a lot of unanswered questions here.

Why, if a

8

NIT could be deployed at any time somebody clicked on any

9

aspect of the website, including their home page, did they

10

choose to make it -- excuse me, choose to continue to

11

distribute child pornography?

12

there was probable cause from the time he signed on to this

13

website.

14

I mean, their whole premise is

And one of the things we intend to explore, in terms of

15

the outrageousness of the government conduct, is that even

16

though by their own statements this investigation could take

17

place just by clicking on the various aspects of the site,

18

there's no necessity to download or distribute this content,

19

as far as I can tell from their own analysis of how probable

20

cause was supposed to operate in this case.

21

Now, of course we are challenging the very notion that you

22

have probable cause at the time of signing in, because this

23

does appear to be a child pornography website, to an

24

uninformed viewer.

25

other aspects which clearly did have content.

But certainly we've also said there are

174

And this could

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1

have been refined in such a way that they had their probable

2

cause and had deployed their NIT all properly and in a

3

suitably refined and focused manner without requiring the

4

distribution of child pornography.

5

outrageousness truly comes in, because while I appreciate

6

Mr. Becker's passion about the importance of this

7

investigation, and I understand that, it is not as if the

8

government didn't have myriad ways to focus and narrow this,

9

as they have done in other cases.

10

And that is where the

That is also partly what makes this unprecedented, is that

11

they chose to do this in an extraordinarily expansive way in

12

terms of the number of targets, or potential targets, and in

13

terms of not trying to restrain what was ultimately ending out

14

on the Internet.

15

And the Court has already seen there are other

16

pronouncements about how even viewing one of these images is

17

supposed to be so damaging to the victims in these cases and

18

there truly are victims.

19

handle your resources in the course of an investigation?

20

But the question is, how do you

I have never seen anything like this, and that is all

21

there is to it.

I have never seen where the government has

22

just sprayed the Internet or a neighborhood or in a gun

23

investigation, a drug investigation, this kind of uncontrolled

24

dissemination of contraband.

25

trying to drive at, what really is the extent of this.

175

And that is really what we are

B-028

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1

Now, Your Honor, turning to my Exhibit 2, very briefly,

2

the October 22nd letter, I would just like to run very quickly

3

down what's outstanding at this point.

4

We asked for the number of child pornography pictures that

5

were posted on the site during the operation.

6

believe the government can claim with a straight face they do

7

not have that information.

8
9

That, I do not

That will be in their server.

That also goes to the second item, the number of videos
that were posted, also the number of links.

I have had

10

clients who have been charged with possession of child

11

pornography for posting a link to a video, not necessarily

12

uploading the content.

13

links constitute distribution.

14

Mr. Becker has said, those should be included in the count.

15

That information is in the government server.

16
17
18

The government takes the view that
If there are links, as

They would also be able to tell user by user, as they did
with

, what videos or links were viewed.
I understand Mr. Becker's argument about the downloading;

19

it is true, there are various ways to preserve.

20

screen shot.

21

Court has seen many of times, and the government will take the

22

position that viewing it is possession, because it ends up in

23

a temporary cache once it appears on the screen.

24
25

You can download.

You can

You may just view it, as the

If they can't give us an exact number, I am sure they can
ballpark that.

That is also going to be available in the

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1
2

server, as I know from prior cases.
The number of visitors, I think the government is going to

3

give us.

But I would ask for a breakdown on that, as we very

4

much clearly indicated to the Court at this point, not

5

everybody who went to that site, particularly given its home

6

page as it actually appeared at the time the FBI was operating

7

it -- I don't believe everybody was necessarily looking for

8

child pornography.

9

subdirectories that were clearly dedicated to child

They have identified various

10

pornography.

If they want to refine the count in that regard,

11

that's fine; that should still be extremely helpful.

12

And Your Honor, turning to page 2, we asked for a summary

13

of any measures that the FBI took to limit access or to block

14

images.

15

such measures whatsoever taken.

My understanding at this point is that there were no

16

THE COURT:

17

MR. FIEMAN:

18
19

You refer to page 2 of -I'm sorry -- of our October 22nd

discovery request letter, which is Exhibit 2, Your Honor.
We do not need additional discovery if the government's

20

position is that whatever the FBI allowed or uploaded during

21

that time, all of it was accessible.

22

question.

23

That kind of answers our

And you know, Your Honor, there is an issue about why the

24

site was kept up and running as long as it was.

25

referring to the 14-day period that the FBI was operating the

177

They keep

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1

site is brief, and of course the Court will characterize it as

2

it sees fit.

3

I can tell you I have had clients charged for much briefer

4

interactions with websites, often amounting sometimes to only

5

a few images.

6

where DOJ came to the realization that maybe this was going

7

too far, or they simply decided they had identified enough

8

targets, but I do believe that the reasons for the duration of

9

this distribution will be relevant to the hearing.

10
11
12

So I don't know whether there was a point to

And the last item, I think I have addressed, in terms of
the documentation regarding their internal procedures on this.
Your Honor, when we're talking about the typical case and

13

the typical good faith argument in the context of a probable

14

cause determination, this just isn't the typical case.

15

what we've made out so far, there is no legal exemption for

16

what the government did here.

17

doesn't allow for this.

18

the government to distribute child pornography in the course

19

of trying to make a case.

20
21

From

You know, there's -- Rule 41

There's no statutory exception for

The number of people, 200,000 users, targeted from a
single warrant, I think is unprecedented.

22

We are dealing with a number of very unusual factors in

23

this case, and I think it is important to bear in mind that

24

while the government keeps going back to Armstrong and talking

25

about discovery in terms of defense at trial, we've given you

178

B-031

32

1

the Ninth Circuit law, Your Honor, which says that all

2

information that relates to pretrial motions is relevant to

3

the defense.

4

More importantly, we are not required to project our

5

strategy at trial.

6

here that we intend to put before a jury.

7

obviously because we are not allowed to -- be asking for a

8

nullification instruction.

9

host of issues about res gestae and the context of how

10

There are a host of issues percolating in
We will not --

But there are, if nothing else, a

was even targeted, that are inevitably going to

11

come up in this trial, unless the government is going to

12

streamline its case to the point where they won't be able to

13

lay the foundation for a lot of their materials.

14

directed onto

15

issues that are going to be coming up at trial.

16

This is all

's overall defense but the inevitable

Finally, Your Honor, as indicated in our briefing,

17

materiality is a very low threshold.

18

that this is relevant to either a pending motion or defense at

19

trial.

20

heading, that I don't need to belabor that.

21
22

We just need to show

And I think the Court has grasped kind of where we are

Unless you have any questions, Your Honor, we would ask
for the specific relief that we requested in our motion.

23

THE COURT:

Well, let me address the limitation,

24

first.

Rule 16, the Federal Rules of Criminal Procedure -- it

25

is hard to cite these things because there are so many sub

179

B-032

33

1

parts.

2

rule does not authorize the discovery or inspection of

3

reports, memoranda, or other internal government documents

4

made by an attorney for the government or other government

5

agent in connection with investigating or prosecuting the

6

case.

7

Court.

8
9

I guess it is (a)(2) of that rule provides that the

It seems to me that that is a rule that binds the

And the government in responding to the order that I am
going to make, I think can recognize that exception and

10

obviously in good faith withhold things that come within that

11

definition.

12

suppression hearing, if the government withholds those

13

documents, that an agent, for example, might be able to

14

testify that he conferred with counsel.

15

about what the lawyer said, all of a sudden that's all open.

16

It is a fine line to walk.

17

government lawyer told me this is all good, well all of a

18

sudden that is open, it seems to me.

19

think you can withhold that information that comes within that

20

category.

21

The problem with that, that I see, is that in a

You start talking

Once an agent says, well, the

But as I indicated, I

Other than that, I think that the items requested should

22

be provided.

And if they can't be specifically -- I am

23

referring to the October 22, 2015, letter to Ms. Vaughn from

24

Mr. Fieman, and I think those things should be produced by the

25

government.

I think they are reasonably relative to defense

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1

theory in the case and material to that theory, giving the

2

benefit of the doubt to the defendant on that question.

3

I understand that some of the specific things requested

4

may not be readily available, but as requested in that letter,

5

if the exact figures or totals are not readily available, a

6

good faith estimate of the numbers would be sufficient.

7

If specifics are not available, I think also the number of

8

charges arising from this investigation should be -- the

9

numbers, only numbers, I am saying -- should be provided to

10
11

the defense.
Is that clear enough?

The motion should be granted to

12

that extent, and denied to the extent that the production

13

would run afoul of Rule 16(2).

14

MR. FIEMAN:

15

Two quick clarifications.

One is, if we could get an estimate -- I understand that

16

the government may need some time to figure out how to capture

17

this, but if we could have an estimate of how much time they

18

need to keep things moving forward because we do have a

19

hearing scheduled.

20
21

MR. BECKER:

Is the Court going to issue a written

order specifying what we are to provide?

22

THE COURT:

23

MR. BECKER:

Do you need one?
I think that would be our preference,

24

Your Honor, just so we are clear, because I think --

25

particularly with respect to the site statistics.

181

I think I

B-034

35

1

understand what the Court is ordering.

2

that letter that pertained to steps taken by the government to

3

limit dissemination, we would like to be clear on what it is

4

we are to produce and by when.

5

THE COURT:

6

MR. FIEMAN:

That last request on

Well, I will issue an order later today.
Your Honor, I'd understood that

7

basically the Court was granting everything -- that everything

8

in our October 22nd letter should be produced, with the

9

exception of the consultations and memoranda records that were

10

separately issued on one subheading, and that was with the

11

proviso that the government may actually open the door to that

12

or should avoid opening the door to that discovery at the

13

hearing.

14

THE COURT:

Well, I don't need to go that far.

It is

15

a matter for the trial judge, who probably will be me, but at

16

my age, who knows.

17

MR. FIEMAN:

Well, Your Honor, in that case, maybe we

18

should move up the hearing; we have got a lot before the

19

Court.

20

THE COURT:

21

MR. BECKER:

Okay.
Judge, I guess -- I think our next

22

motion hearing is scheduled for, I believe, the 22nd of

23

January.

24

THE COURT:

25

MR. BECKER:

I think so.
I guess I would request the first week

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36

1

of January in terms of providing a response.

2

provide it sooner, we'll do so.

3

holidays coming up, and I do need a chance to confer with

4

supervision as to some of the aspects of the Court's order.

5
6

MR. FIEMAN:

And if we can

Obviously we have some

That will be fine, Your Honor, thank

you.

7

THE COURT:

All right.

Okay.

So that would end the

8

hearing, and I will issue an order this afternoon or maybe

9

later this morning.

10

MR. FIEMAN:

11

Thank you, Judge.

(Proceedings concluded.)

12
13
*

14

*

*

*

*

C E R T I F I C A T E

15
16

I certify that the foregoing is a correct transcript from

17
18

the record of proceedings in the above-entitled matter.

19
Teri Hendrix __________

20

/S/

21

Teri Hendrix, Court Reporter

December 16, 2015
Date

22
23
24
25

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