Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Owens

United States District Court, E.D. Wisconsin

December 19, 2016

MARCUS A. OWENS, Defendant.


          J.P. Stadmueller, United States District Judge.

         Before the Court is Defendant Marcus A. Owens' (“Owens”) objection to Magistrate Judge David E. Jones' order of November 4, 2016, denying his motion to compel discovery regarding the “Network Investigative Technique” (“NIT”) employed by the government in this case. For the reasons stated below, Magistrate Jones' ruling will be affirmed in its entirety.


         1.1Playpen Investigation

         In late 2014, the FBI began investigating Playpen, a website used to advertise and distribute child pornography. (Docket #78 at 2). The website was accessible to Internet users through a “Tor” browser, which masks the user's Internet Protocol (“IP”) address and, as a result, his identity. Id. The FBI apprehended the administrator of the Playpen site in early 2015 and thereafter allowed Playpen to continue operating on a server located in a government facility in the Eastern District of Virginia. Id.

         On February 20, 2015, a United States magistrate judge sitting in the Eastern District of Virginia issued a warrant authorizing the government to deploy an NIT on that server. Id. at 2-3. The NIT was able to function because it exploited a vulnerability in the Tor browser through which it could access activating computers. Id. at 6. In addition to the normal content the end user downloaded from the Playpen site, the NIT downloaded additional instructions onto the end user's computer. Id. at 3. For purposes of the NIT warrant, the end user's computer was dubbed the “activating computer.” Id. After downloading the additional instructions, the activating computer would transmit certain content-neutral identifying information to the government-controlled server. Id. The NIT was deployed each time a user logged onto Playpen while it was under government control, which lasted from February 20 to March 4, 2015. Id. According to the government, the NIT did not reveal any information other than the identifying data listed in the warrant and it did not deny the user access to any data on or functionality of his computer. Id.

         While operating Playpen in conjunction with the NIT, the FBI identified Owens as a Playpen user. Id. Law enforcement officers subsequently obtained a warrant to search Owens' home. Id. Upon executing the warrant, officers recovered an external hard drive that contained numerous images and videos of suspected child pornography. Id. at 4. Owens agreed to speak with law enforcement and he admitted accessing certain websites that contained images of child pornography. Id. Based on the evidence seized from the residence and his statement to law enforcement, Owens was arrested pursuant to a criminal complaint that charged him with receiving and possessing child pornography. (Docket #1). On March 1, 2016, a grand jury returned an indictment against Owens, charging him 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).

         1.2Owens' Motion to Compel

         On March 24, 2016, Owens wrote a letter to the government requesting that it produce “a complete copy of the code used for the NIT.” (Docket #76-3). The government agreed to produce only a portion of the NIT's source code. Thereafter, Owens retained Matthew Miller (“Dr. Miller”), an assistant professor of computer science and information technology at the University of Nebraska at Kearney, to analyze the portion of the NIT code the government produced. (Docket #78 at 4-5). Dr. Miller opined that he needed to evaluate additional portions of the NIT that the government had not produced. (Docket #76-1). The government agreed to produce some additional information but again stopped short of producing everything Owens requested. (Docket #68). Owens filed a motion to compel the entire NIT source code on November 1, 2016. (Docket #76).

         The NIT, according to Owens, has four discrete components: (1) tracking server software used to generate and track the information extracted from activating computers; (2) exploit software used to take advantage of a software flaw in the Tor browser; (3) payload software that ran on the activating computers to extract information and report that information back to the government server; and (4) collection server software that stored the extracted information on the government server. (Docket #62 at 2). To date, the government has produced the tracking server software and the payload software. Id. at 4. Owens still seeks the exploit software, a “human-readable” form of the payload software, and the collection server software. Id.

         In litigating the matter before Magistrate Jones, Owens offered two rationales for his need to discover these additional pieces of the NIT source code. First, Owens suspects that the NIT “may have extracted more information from his computer than the warrant permitted.” Id. at 5. Second, Owens contends that “the NIT's exploit component may have altered [his] computer, potentially creating an ongoing vulnerability for attack by a third party-that is, it may have allowed a third party to use the computer and store information on it, including the illegal material now being attributed to him.” Id.

         As an initial matter, the government argued that it had produced what it believed to be the entire source code for the NIT-that is, the additional instructions the NIT downloaded on the activating computers in addition to Playpen's usual content. (Docket #70-2 ¶ 5). On top of that, the government has made Owens' computer available to him and produced the two-way data stream showing what information went into Owens' computer and what information was sent back to the government-hosted computer server. Id. ¶ 15; (Docket #78 at 8). According to the government, Dr. Miller has analyzed the data stream and has confirmed that this information matches the NIT results. (Docket #78 at 8); (Docket #76-1 ¶ 2).

         Further, says the government, even if the NIT could be separated into components as Owens requests, it should not be required to produce those components. First, there is no “human-readable” form of the payload software, and second, the exploit and collection server software are immaterial to Owens' defense and are subject to the law enforcement privilege. Id. On this second point, the government viewed Owens' rationales for the materiality of the software as mere supposition, unsupported by any evidence that the government actually extracted more information from his computer than authorized or left his computer open to third-party attack. Id. at 8-9.

         1.3Magistrate ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.