After entering “ a conditional guilty plea to five
charges of sexual exploitation of a minor arising from child pornography on his
laptop computer”, Daniel Roberts appealed his conviction. State
v. Roberts, 345 P.3d 1226, 2015 UT 24 (Supreme Court of Utah 2015). On appeal, Roberts, among other things,
challenged “the propriety of law enforcement's use of the Wyoming Toolkit, a
computer program and database used to identify child pornography shared over
the Internet through peer-to-peer file sharing networks” in gathering evidence
that was used to charge him and challenged the trial judge’s “ruling that
denied him discovery of the Wyoming Toolkit.” State v. Roberts, supra.
The Supreme Court began its analysis of his arguments by
explaining how the prosecution arose:
Utah's Internet Crimes Against Children
task force (ICAC) works to prevent the online distribution of child
pornography. The ICAC searches peer-to-peer (P2P) file sharing networks for
child pornography being shared among P2P users. Gnutella, one such P2P network,
allows its users to share digital files directly over the Internet. Gnutella
uses what is called the secure hash algorithm (SHA–1) encryption method to
assign a unique digital signature to each file shared over its network. Because
each digital file has a different SHA–1 value, those values can be used to
identify a file. Through prior investigations, law enforcement has compiled a
database of thousands of SHA–1 values that correspond to files containing child
pornography. This database, along with software that searches Gnutella for the
identified SHA–1 values, is known as the Wyoming Toolkit.
The ICAC uses the Wyoming Toolkit to
monitor Gnutella for IP addresses sharing files with suspect SHA–1 values. Once
the Toolkit flags an IP address sharing a file with an SHA–1 value that matches
known child pornography files, officers confirm that the suspect file is indeed
child pornography either by downloading and viewing the file directly or by
comparing the identified file's SHA–1 value with SHA–1 values of known child
pornography contained in databases like the National Child Victim
Identification Program. Upon confirming that the identified file is child
pornography, officers send an administrative subpoena to the applicable
internet service provider to obtain the subscription information associated
with the identified IP address.
During a 2009 investigation, the ICAC
determined that an IP address in Emery County, Utah, had used Gnutella to share
hundreds of `files with SHA–1 digital signatures identical to images of
suspected child pornography’ during a five month period. The ICAC submitted
these findings to FBI Agent Sonja Nordstrom. Upon confirming the files
contained child pornography, Nordstrom served a subpoena on Emery
Telecom, the local internet service provider, which was able to identify
Roberts as the owner of the suspect IP address. Based on this information,
Nordstrom obtained a search warrant for Roberts' home and computers
State v. Roberts,
supra.
The court goes on to explain that Roberts was not home on
the day the officers
executed the search warrant. Nordstrom
called Roberts on his cell phone to inform him of the search, but did not
discuss the purpose of the investigation. Roberts told Nordstrom he was in
Ogden, Utah, where his wife was in the hospital. Nordstrom later spoke with Roberts'
wife, who indicated that Roberts had his laptop computer with him in Ogden.
Nordstrom traveled to Ogden to meet
with Roberts. Roberts brought his laptop to the meeting, and Nordstrom explained . . . that he was being investigated for possession of child pornography.
After some questioning, Roberts admitted he had been downloading child
pornography for approximately a year and had been in the process of deleting
the child pornography from his computer since Nordstrom had called him. After
Roberts made this admission, Nordstrom asked if she could see his laptop.
Roberts consented. Nordstrom subsequently obtained a search warrant
specifically for Roberts' laptop.
State v. Roberts, supra.
The Supreme Court went on to explain that Roberts’ laptop
was taken to a
computer forensic lab, where an
examiner found video and still images of child pornography. Roberts was charged
with thirty counts of sexual exploitation of a minor, a second degree
felony. Utah Code § 76–5a–3. . . . Before trial, [he] made four
motions. . . . First, he moved to suppress the evidence of child pornography
found on his laptop. Relying on the U.S. Supreme Court case Kyllo v. U.S., 533 U.S. 27 (2001), Roberts argued that the Wyoming Toolkit, like the thermal image
scanning at issue in Kyllo, constituted a search, and
therefore use of the Toolkit without a warrant violated the 4th Amendment to the U.S. Constitution.
Roberts further argued that he had an
expectation of privacy in the contents of his computer and that by accessing
those contents through the Wyoming Toolkit, the State violated his expectation
of privacy through an unlawful search. The district court denied Roberts'
motion, reasoning that the Wyoming Toolkit did not have `the same intrusiveness
as thermal imaging’ and that `peer-to-peer file sharing is not entitled to a
reasonable expectation of privacy.’
State v. Roberts,
supra.
Roberts also moved to compel discovery of the Wyoming Tool
Kit and
its methodologies. He also moved to
compel discovery of `any and all associated program documentation, instruction
manuals, technical support materials, training materials, and purchase
documents . . . to verify that the images [he] is alleged to have
possessed are in fact[ ] illegal images.’ The district court granted the motion
in part and denied it in part.
It held that Roberts was entitled to
discovery of `whatever information the State has in regards to this case,’
including `any information the State has’ regarding the SHA–1 values associated
with the files found on Roberts' laptop. But it denied [his] motion to compel
discovery of every SHA–1 value in the Wyoming Toolkit database and `the search
algorithm process and methodology utilized’ in the Toolkit. It reasoned that
discovery of the Toolkit was unnecessary for the purpose Roberts alleged
because Nordstrom had personally verified that the files Roberts had shared on
Gnutella were indeed child pornography and because `disclosure of investigative
techniques and procedures would interfere with law enforcement efforts.’
State v. Roberts,
supra.
Roberts argued, on appeal, that the trial court erred in rejecting
his 4th Amendment argument and not allowing discovery concerning the
Wyoming Tool Kit. State v. Roberts,
supra. The Supreme Court began its opinion by explaining that
[d]ifferent standards of review apply
to each of Mr. Roberts' arguments. We review for correctness the district
court's denial of Mr. Roberts' motion to suppress on the ground that law
enforcement's use of the Wyoming Toolkit constituted an unlawful search. State
v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251 (Utah Supreme Court 2010)
Because district courts `have broad discretion in matters of discovery,’ we
review for an abuse of discretion the district court's ruling that denied Mr.
Roberts discovery of the Wyoming Toolkit. Green v. Louder, 2001
UT 62, ¶ 37, 29 P.3d 638 (Utah Supreme Court 2001).
State v. Roberts,
supra.
The court then began its analysis of Roberts’ arguments on
appeal with his 4th Amendment argument, explaining that the 4th
Amendment to the U.S. Constitution
prohibits `unreasonable searches and
seizures.’ Government conduct that infringes upon a subjective and `reasonable
expectation of privacy’ constitutes a search and therefore cannot take place
absent a valid warrant or a recognized exception to the warrant
requirement. State v. Price, 2012 UT 7, ¶ 9, 270 P.3d 527
(Utah Supreme Court 2012). . . . A subjective and reasonable expectation of
privacy exists when `(1) an individual has “exhibited an actual (subjective)
expectation of privacy” and (2) “the expectation [is] one that society is prepared
to recognize as reasonable.”’ State v.
Price, supra (quoting Katz v. U.S., 389 U.S. 347 (1967) (Harlan, J., concurring)). In this case, we must decide whether
Roberts had a subjective expectation of privacy in files he shared on Gnutella
and, if so, whether that expectation of privacy was objectively reasonable.
State v. Roberts,
supra.
The court then explained that
[a]lthough we have yet to consider
whether a reasonable expectation of privacy exists in a file shared over a P2P
network, several federal courts have considered the issue and none has found an
expectation of privacy. See U.S. v. Hill, 750 F.3d 982 (U.S. Court of Appeals for the 8th Circuit 2014) (`[A] defendant has no
reasonable expectation of privacy in files . . . retrieved from his personal
computer where [the defendant] admittedly installed and used LimeWire to make
his files accessible to others for file sharing’); U.S. v. Conner, 521
Fed. Appx. 493 (U.S. Court of Appeals for the 6th Circuit 2013) (finding
no reasonable expectation of privacy in files shared through a P2P file-sharing
program); U.S. v. Norman, 448
Fed. Appx. 895 (U.S. Court of Appeals for the 11th Circuit 2011) (same); U.S.
v. Borowy, 595 F.3d 1045 (U.S. Court of Appeals for the 9th Circuit 2010) (same); U.S.
v. Perrine, 518 F.3d 1196 (U.S. Court of Appeals for the 10th Circuit 2008) (same).
We agree with this federal precedent and hold that there is no reasonable
expectation of privacy in a file that an individual publicly shares on a P2P network.
State v. Roberts,
supra.
The Supreme Court then applied these holdings to the facts
in this case, explaining that
Roberts publicly shared his files on
Gnutella, thereby rendering them publicly available to anyone with a Gnutella
client. And because [he] made no effort to limit access to his files on
Gnutella, he exhibited no subjective expectation of privacy in those files.
Neither the ICAC's investigation of Roberts' publicly shared files nor its use
of the Wyoming Toolkit to identify the files as child pornography constituted a
search. The Wyoming Toolkit merely enabled the ICAC officers to recognize files
with SHA–1 values associated with child pornography. But it did not allow the
government to access private information on Roberts' computer. It therefore did
not invade a constitutionally protected private space.
State v. Roberts,
supra.
The Supreme Court wen on to explain t why Roberts’ attempt
to rely on the holding in the Kyllo
case was misplaced:
Roberts relies on the U.S. Supreme
Court's opinion in Kyllo v. U.S., 533 U.S. 27, (2001).
In Kyllo, the Court held that the use of thermal imaging
scanners to detect high-intensity lamps used to grow marijuana in a home
constituted an unlawful search. U.S.
v. Kyllo, supra. The Court reasoned that the thermal imaging intruded on
the interior of the home, which is protected by a high expectation of
privacy. U.S. v. Kyllo, supra. [It]
thus held that where `the Government uses a device that is not in general
public use, to explore details of the home that would previously have been
unknowable without physical intrusion, the surveillance is a ‘search’ and is
presumptively unreasonable without a warrant.’ U.S. v. Kyllo, supra.
Roberts focuses on the fact that the
government in Kyllo used technology that is not publicly
available. He argues that, like the thermal imaging scanners at issue in Kyllo,
the Wyoming Toolkit is not accessible to the public. But the greater
concern in Kyllo was that the government was using the
technology to intrude the privacy of the home. The Wyoming Toolkit, on the
other hand, is used only to identify child pornography in files that are
publicly shared on P2P network. Unlike thermal imaging scanners, the
Toolkit does not intrude on any interest in which the defendant has a
reasonable expectation of privacy. Use of the Toolkit therefore does not
constitute an unlawful search.
State v. Roberts,
supra.
The court then took up Roberts’ argument that the trial
judge abused his discretion in denying his motion to compel discovery of the
Wyoming Toolkit, including
its methodologies and all of the SHA–1
values in its database. We review this claim for an abuse of discretion and the
appellant bears a heavy burden in showing that the district court abused its
discretion. R & R Energies v. Mother Earth Indus., Inc., 936
P.2d 1068 (Supreme Court of Utah 1997). To meet this burden, the appellant must
show either `an erroneous conclusion of law or [that] there is no evidentiary
basis’ for the court's discovery ruling. . R & R Energies v.
Mother Earth Indus., Inc., supra. .
. . (internal quotation marks omitted). Roberts has shown neither.
State v. Roberts,
supra.
It went on to note that when the trial judge ruled on
Roberts’ motion to compel, he
allowed Roberts to discover any
information the State had regarding his case, including the SHA–1 values
associated with files found on his laptop. But the district court denied the
remainder of Roberts' discovery request for two independent reasons: (1) that
discovery of the Toolkit would not produce the evidence Mr. Roberts sought
(i.e., verification that the files Roberts had shared and that the Toolkit had
detected were indeed child pornography) and (2) that disclosure of all of the
Toolkit's methodologies and SHA–1 values would harm future ICAC investigations.
State v. Roberts,
supra.
The Supreme Court was not convinced, explaining, initially,
that Roberts’
main argument on appeal is that the
Toolkit and its methodologies are not privileged. But the district court did
not hold that the Toolkit was privileged information; it merely held that
discovery of all aspects of the Toolkit and its methodologies were not relevant
and would be harmful to future ICAC investigations. And because Roberts
provides no authority to the contrary, he has failed to show that the district
court abused its discretion by denying discovery.
State v. Roberts,
supra.
It also pointed out that Roberts had not addressed the trial
judge’s
alternative ground for denying the
motion: that discovery of the Toolkit would not be useful in verifying that the
files Roberts shared on Gnutella contained child pornography. See Salt
Lake Cnty. v. Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30,
297 P.3d 38 (Utah Court of Appeals 2013) (an appellate court `will not
reverse a ruling of the trial court that rests on independent alternative
grounds where the appellant challenges only one of those grounds’). As the
district court reasoned, discovery of all of the Toolkit's SHA–1 values would
not have been helpful to Roberts because the government relied on Nordstrom's
review of the files, rather than on the Toolkit's SHA–1 values, to verify that
those files contained child pornography.
Discovery of the Toolkit and its
methodologies was therefore not material to Roberts' case. See State
v. Spry, 2001 UT App 75, 21 P.3d 675 (Utah Court of Appeals 2001)
(explaining that under the `good cause’ standard in Utah Rule of Criminal Procedure 16(a)(5), a defendant must `establish the materiality of the
requested records to the case. . . )). Roberts has made no attempt to refute
this basis for denying his motion.
State v. Roberts,
supra.
The Supreme Court therefore held that Roberts had failed to
meet his burden of persuasion on
appeal. And where the district court permitted discovery of those aspects of
the Wyoming Toolkit that were most relevant to Roberts' case, it did not abuse
its discretion in denying discovery of the entire Toolkit database, its
methodologies, and all of its SHA–1 values. We therefore affirm the district
court's discovery ruling.
State v. Roberts,
supra.
Since it also rejected the other arguments he made on
appeal, the Supreme Court affirmed Roberts’ conviction and sentence. State v. Roberts, supra. The news story you can find here provides a
little more information about the case, including the details of the “deal”
Roberts struck with the prosecutors that had him plead guilty but retain the
right to appeal. It also notes the
sentence that was imposed on him pursuant to the deal.
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