Friday, December 20, 2013

The IP Address, the Software and Discovery

At some point prior to November, 2013, James Dillow was charged with “receipt, distribution, and possession of child pornography in violation o  18 U.S. Code §§ 2252(a)(2) and 2252A(a)(5)(B)”.  U.S. v. Dillow, 2013 WL 5863024 (U.S. District Court for the Northern District of Ohio 2013). Neither this opinion nor any news stories I can find online explains how he came to be charged.

In the opinion, the federal judge who has the case is ruling on Dillow’s Motion to Compel Discovery and the Government’s Motion in Opposition to Dillow’s motion.  U.S. v. Dillow, supra.  As Wikipedia notes, in U.S. law “discovery” is the

pre-trial phase in a lawsuit in which each party . . . can obtain evidence from the opposing party by means of discovery devices including . . . requests for production of documents. . . . Discovery can be obtained from non-parties using subpoenas. When discovery requests are objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

Wikipedia’s entries on discovery and on motions to compel focus on how the processes work under the U.S. law that applies to civil suits.  The article you can find here outlines discovery in criminal cases pursuant to the Federal Rules of Criminal Procedure.

In this case, Dillow made a “discovery request” to the prosecution, and the prosecution responded by giving him

a copy of the search warrant affidavit submitted for a search of Dillow's home. That affidavit noted that Perrysburg Police Detective Patrick Jones (`Jones’) had used computer software to identify Dillow's Internet Protocol (`IP’) address as one ‘offering to trade or share child pornography’. . . . Dillow now seeks to compel disclosure of ‘the computer software used to establish the alleged possession or offer of distribution’ in his case; such discovery, Dillow claims, will allow him to test the reliability of that software . . . .

Specifically, Dillow seeks: (1) identification of the software; (2) `objective rates of reliability possessed by the developer of the software;’ and (3) the opportunity to inspect the software used. . . . To conduct that inspection, Dillow seeks a thirty-day extension of the pretrial motion deadline, running from the date on which the Government discloses the requested information.

U.S. v. Dillow, supra.  You can find an example of a state law enforcement officer’s application for a search warrant and the affidavit submitted in support of the application here. An officer uses the affidavit to outline the facts that establish probable cause for the warrant, which is required under the 4th Amendment.

The prosecution opposed Dillow’s motion to compel

on two grounds. First, the Government avers Dillow has failed to establish materiality of the information he seeks, as required by Federal Rule of Criminal Procedure 16(a)(1)(E)(i). Second, the Government argues one of the two software programs used to tie Dillow to child pornography enjoys a qualified privilege against disclosure.

U.S. v. Dillow, supra.  For more on qualified privileges and discovery in criminal cases, check out this prior post.

Before he addressed the merits of the arguments made by Dillow and the prosecution, the judge outlined the factual background of the discovery dispute:

The Government's Opposition describes the search method Jones used to link Dillow to child pornography. Jones began his investigation using an unnamed software program and a related database. The Government describes these tools (hereafter `the law enforcement search tool’) as follows:

`The [law enforcement search tool] simply searches the Gnutella network[, a peer-to-peer file sharing community,] for IP addresses sharing files previously identified to be child pornography. The software works in conjunction with a database. This software and the database are licensed to, available to[,] and used exclusively by law enforcement. As law enforcement officers, licensed to use this software, their work is logged to the database. In this way, law enforcement officers around the world can pool their efforts and help identify targets who are operating on the global Internet.’

Once the law enforcement search tool identifies a Gnutella user offering to share child pornography, Jones uses Phex, a publicly-available file-sharing program, to download child pornography from that user.

Jones used this two-step investigative process to download from Dillow's shared items folder two complete child pornography files. Jones partially downloaded two additional child pornography files from the same source. The Government represents that neither the law enforcement search tool nor Phex is able to place data on other users' computers; together, the two programs can only identify and then retrieve files a Gnutella user elects to share with others.

U.S. v. Dillow, supra. 

He then outlined the applicable law, noting that Federal Rule of Criminal Procedure 16(a)(1)(E) 

provides for limited discovery in criminal prosecutions of `data . . . [or] tangible objects . . .  within the government's possession, custody, or control.’ Rule 16 additionally requires, in relevant part, that the `item [be] material to preparing the defense.’ . . .

To be discoverable under Rule 16, then, Dillow must make two showings with respect to each type of information he seeks. First, Dillow must show the information is `within the government's possession, custody, or control.’ Second, Dillow must demonstrate the materiality of that information. See U.S. v. Phillip, 948 F.2d 241 (U.S. Court of Appeals for the 6th Circuit 1991) (`A defendant does not satisfy [the materiality requirement] by means of conclusory arguments concerning materiality.’). Both showings are essential, for `the discovery afforded by Rule 16 is limited to evidence referred to in its express provisions.” See U.S. v. Warshak, 631 F.3d 266 (U.S. Court of Appeals for the 6th Circuit 2010).

U.S. v. Dillow, supra. 

The judge found that Dillow’s discovery request for

`objective rates of reliability’ for either the law enforcement search tool or Phex fail at the outset. Dillow describes the reliability information as `possessed by the developer of the software’. . . . That `developer’ is apparently a private entity -- the Government explains the software is `licensed to’ law enforcement officers. . . .

Nowhere does Dillow allege that the Government -- or, indeed, any governmental entity -- also has access to or otherwise controls the reliability information `possessed by the developer.’ That aspect of Dillow's request falls outside of Federal Rule of Criminal Procedure 16s custody-of-the-government requirement, however broadly construed, and is not discoverable.

U.S. v. Dillow, supra. 

He then noted that Dillow’s request for the

identification of, and an opportunity to inspect, the two software programs used in Jones' investigation presents a closer question. The specific software Jones used to identify Dillow is, so far as the briefing reveals, in the sole possession of the Perrysburg PoliceDepartment -- Dillow recites the language of Rule 16 in his Motion in a bid to place the software programs within its scope, but does not specifically allege that the United States Attorney has actual control over that software. . . .

In such a situation, does the `government’ have `custody’ in the Rule 16 sense of items apparently possessed only by a local law enforcement agency?

U.S. v. Dillow, supra. 

The judge noted that while he would have to answer that question without the

aid of any on-point reported 6th Circuit decisions, the weight of authority elsewhere indicates the answer to that question is `No.’ See, e.g., U.S. v. Marshall, 132 F.3d 63 (U.S. Court of Appeals for the D.C. Circuit 1998) (noting `ample authority’ that ‘the term “government” as used in Rule 16 does [not] encompass[ ] local law enforcement offices’); U.S. v. Brazel, 102 F.3d 1120 (U.S. Court of Appeals for the 11th Circuit (1997) (construing `government' in 
Rule 16 to mean `defendant's adversary, the prosecution’ in light of `repeated references [in the Rule] to the “attorney for the government”’); U.S. v. Chavez–Vernaza, 844 F.2d 1368 (U.S. Court of Appeals for the 9th Circuit (1987)  (concluding `the federal government had no duty to obtain from state officials documents of which it was aware but over which it had no control’ in federal prosecution resulting from state-initiated investigation).

That conclusion seems best supported by Rule 16's text. Rule 16(a)'s various provisions are grouped under a heading that speaks to the `Government's Disclosure,’ while Rule 16(b) lists the `Defendant's Disclosure.’ In both sections, the `government’ is alternatively tasked with producing materials (under Rule 16(a)), or given the authority to request that the defendant produce certain information (under Rule 16(b)).

Using the presumption of consistent usage, `government’ is most naturally read as bearing the same meaning in both sections of the same rule. See, e.g., Ratzlaf v. U.S., 510 U.S. 135 (1994) (`A term appearing in several places in a statutory text is generally read the same way each time it appears.’).

U.S. v. Dillow, supra. 

The District Court judge also pointed out that a

consistent usage of `government’ excludes local law enforcement entities becomes apparent by reflecting on Dillow's reading of the Rule. As noted above, Rule 16 at once imposes on the `government’ discovery obligations while also granting the `government’ certain discovery rights. In some cases, these rights and obligations are reciprocal, triggered only when a defendant makes a prior disclosure request for particular items. See, e.g., Federal Rule of Criminal Procedure 16(b)(1)(A).

Dillow would have this Court require the Perrysburg Police Department to disclose the law enforcement search tool because that Department is the `government’ for purpose of the Rule. Would Dillow likewise permit the Perrysburg Police Department to exercise the Rule 16(b) governmental discovery prerogatives that exist in this case, in light of Dillow's prior disclosure request? . . . .

For instance, Dillow requested a summary of possible expert government witnesses. Would the Perrysburg Police Department likewise be entitled to a copy of Dillow's expert's report? See Federal Rule of Criminal Procedure 16(b)(1)(C)(i). Plainly not. See also Federal Rule of Criminal Procedure 16(c) (imposing on a `[a] party who discovers additional . . . material’ of a type `the other party [has] previously requested’ to `promptly disclose [the material's] existence to the other party or the court’ if otherwise subject to discovery under the Rule); Federal Rule of Criminal Procedure 16(d)  (empowering a district court to enter appropriate orders `[i]f a party fails to comply with [Rule 16]).

U.S. v. Dillow, supra. 

But the judge also explained that

[a]ll this is not to say a defendant in Dillow's position is out of luck when it comes to discovery of materials in the sole possession of a local law enforcement agency that initiates an investigation later resulting in federal criminal charges. The Government's obligation under Brady v. Maryland, 373 U.S. 83 (1963) is not as limited as its Rule 16 obligation. See U.S. v. Hamilton, 107 F.3d 499 (U.S. Court of Appeals for the 7th Circuit 1997) (`Unlike Brady . . . [Rule 16] imposes upon the federal government no duty to obtain documents that are controlled by the state government or police, even if the prosecution is aware of the items.’).

Moreover, some materials may be amenable to discovery by subpoena. Federal Rule of Criminal Procedure 17(c) provides for the issuance of a subpoena that `may order [a] witness to produce any books, papers, documents, data, or other objects the subpoena designates . . .  in court before trial or before [the materials] are to be offered into evidence.’

Finally, as noted above, Federal Rule of Criminal Procedure 16's disclosure obligation is a continuous one. See  Rule 16(c). Assuming the materials Dillow seeks would otherwise be discoverable under the Rule, and not protected from disclosure by any applicable privilege, if the Government were later to come into `possession, custody, or control’ of the specific search tools used in this case, those tools would no longer fall outside of Rule 16. 

And of course, Dillow will in all events be able to cross-examine Jones, should he testify about his use of the law enforcement search tool or Phex at trial.

U.S. v. Dillow, supra. 

Ultimately, the judge found that

[a]s Dillow's case currently stands though, this Court lacks authority under Rule 16 to compel the Perrysburg Police Department to either identify the software it used in its investigation or allow Dillow to conduct a `physical examination of the software.’ 

Whatever other federal entities the term `government’ might include under Rule 16, the Rule's text, along with associated case law, supports the conclusion that that term excludes local law enforcement agencies.

U.S. v. Dillow, supra. 

Since his lack of authority meant that he had to deny Dillow’s motion to compel, the judge did not “reach the Government's alternative arguments for denying this Motion.”  U.S. v. Dillow, supra.  The federal judge lacked authority to compel the Perrysburg Police Department to comply with what Dillow sought because, as Wikipedia explains, the United States is a federal system in which governing power is divided among two basic united of government:  the federal government (of which is court is part) and the fifty states.  A federal judge can order federal law enforcement officers to do certain things, such as disclose evidence, but has no authority over state law enforcement officers.

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