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United States v. Owens

United States District Court, E.D. Wisconsin

December 5, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCUS A. OWENS, Defendant.

          ORDER

          J.P. STADTMUELLER, U.S. DISTRICT JUDGE

         On March 1, 2016, a grand jury sitting in the Eastern District of Wisconsin returned a two-count indictment against Marcus A. Owens. Indictment (Docket #9). Mr. Owens is charged with one count of knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2), and one count of knowingly possessing matter that contained images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5). (Docket #9). This matter comes before the Court on Mr. Owens's motion to dismiss the indictment. (Docket #41).

         On September 8, 2016, Magistrate Judge David E. Jones issued a Report and Recommendation (“the Report”) with this Court, recommending that the motion to dismiss the indictment be denied. (Docket #58). On October 17, 2016, Mr. Owens filed written objections to the findings pursuant to 28 U.S.C. § 636(b(1)(C). (Docket #58). On October 31, 2016, the government filed a response to the objections, (Docket #73), and Mr. Owens did not file a reply. The objections to the Report are now fully briefed and ready for disposition. As discussed below, the Court will adopt the recommendation of Magistratee Jones and deny Mr. Owens's motion to dismiss the indictment.

         1. BACKGROUND

         This case arises out a large-scale FBI investigation into a child pornography website. For the purposes of this Order, the Court presumes the parties' familiarity with the background of this case.

         In September 2014, FBI agents began investigating a website that appeared to be dedicated to the advertisement and distribution of child pornography. (Affidavit in Support of Application for NIT Warrant (“NIT Warrant Aff.”) ¶ 11, Docket #39-2 at 5-37. The website, “Playpen”-referred to in the warrant applications as “Target Website” and “Website A” respectively-had more than 150, 000 registered users and contained tens of thousands of posts related to child pornography. (NIT Warrant Aff. ¶¶ 10-13).

         Playpen did not reside on the traditional or “open” internet. (NIT Warrant Aff. ¶ 10). Instead, Playpen operated only on the “Tor” network, an open-source software tool which routes communications through multiple computers called “nodes” in order to mask a user's IP address. Users have to download specific Tor software or utilize a Tor “gateway” to get onto the Tor network and then navigate to a site like Playpen. (NIT Warrant Aff. ¶ 7). This process is used to keep the website user's identity anonymous. (NIT Warrant Aff. ¶¶ 7-9).

         1.1 The Network Investigative Technique Warrant

         In February 2015, the FBI apprehended the administrator of Playpen and took control of the website. (NIT Warrant Aff. ¶ 30). Rather than shut down Playpen, however, the FBI operated the website from a government facility in the Eastern District of Virginia for close to two weeks in an effort to identify website users. On February 20, 2015, an FBI special agent applied to a magistrate judge in the Eastern District of Virginia for a warrant to use a Network Investigative Technique (“NIT”) to investigate Playpen's users and administrators. In support of the warrant application, the agent submitted a thirty-three-page affidavit that set forth his basis for probable cause to believe that deploying the NIT would uncover evidence and instrumentalities of certain child exploitation crimes. (See generally NIT Warrant Aff).

         The NIT involved additional computer instructions that would be downloaded to a user's computer-referred to as an activating computer-along with the site's normal content. NIT Warrant Aff. ¶ 33. After downloading the additional instructions, the activating computer would transmit certain information to the government-controlled computer located in the Eastern District of Virginia, including: (1) the computer's actual IP address; (2) a unique identifier to distinguish the data from that of other computers; (3) the computer's operating system; (4) information about whether the NIT had already been delivered to the computer; (5) the computer's “Host Name”; (6) the computer's active operating system username; and (7) the computer's “Media Access Control” address. NIT Warrant Aff. ¶¶ 33-34, 36. The NIT would be deployed each time a user logged onto the government-controlled website. NIT Warrant Aff. ¶ 36.

         On February 20, 2015, United States Magistrate Judge Theresa Carroll Buchanan, sitting in the Eastern District of Virginia, signed the NIT Warrant. (NIT Warrant, Docket #39-2 at 2-4). The face of the NIT Warrant authorized the government to search property located in the Eastern District of Virginia. (NIT Warrant at 2). Additionally, the NIT Warrant further described the property to be searched in “Attachment A” to the warrant. (NIT Warrant at 2).

         Attachment A of the NIT Warrant stated that the warrant “authorize[d] the use of [an NIT] to be deployed on the computer server described below, obtaining information described in Attachment B from the activating computers described below.” (NIT Warrant at 3). It explained that the computer server, which was located at a government facility in the Eastern District of Virginia, was operating a Tor network child pornography website. Further, it stated that the activating computers were those of any user or administrator who logged into the child pornography website. (NIT Warrant, Docket #39-2 at 3).

         Attachment B identified the property to be seized. It listed seven pieces of information to be seized “[f]rom any ‘activating' computer”: (1) the IP address, and the date and time the NIT determined the IP address; (2) a unique identifier generated by the NIT; (3) the type of operating system running on the computer; (4) information about whether the NIT had already been delivered to the activating computer; (5) the activating computer's Host Name; (6) the activating computer's active operating system username; and (7) the activating computer's media access control address. (NIT Warrant at 4).

         Through the use of the NIT and additional investigation, FBI agents determined that an individual with the username “tinderbittles” registered an account on Playpen on February 3, 2015, and accessed the site for more than three hours between February 3 and March 4, 2015. (Residence Warrant Aff. ¶¶ 25-26, Docket #39-1). This user accessed several posts that contained links to and sample photos of child pornography. (Residence Warrant Aff. ¶¶ 27-31). Agents learned the user's IP address via the NIT, determined the service ...


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