United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
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).
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.
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.
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).
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).
Network Investigative Technique Warrant
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).
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.
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
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).
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).
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 ...