Limewire, Child Pornography and the Lifetime Ban on Internet Access

This post examines an opinion from the U.S. Court of Appeals for the Fifth Circuit:  U.S. v. Scott, 2016 WL 1567619 (2016).  The court begins its analysis of Jason Daniel Scott’s arguments on appeal by explaining how the prosecution arose and how it proceeded:

A grand jury indicted Scott on one count of possessing child pornography in violation of 18 U.S. Code §2252A(a)(5)(B) and three counts of receiving child pornography in violation of 18 U.S. Code § 2252A(a)(2)(A). He originally pleaded guilty to one count of receiving child pornography and was sentenced to 235 months in prison and a ten-year term of supervised release. This conviction and sentence, though, were vacated after Scott filed a 28 U.S. Code § 2255 motion alleging, among other things, that he pleaded guilty because his counsel assured him that the district judge had told a mutual friend that Scott would get `hammered’ if he went to trial, but that the judge would `take it easy on him’ by sentencing him to only five years if Scott pleaded guilty.

Following this unusual course of events, Scott pleaded guilty again—this time to the single count of possessing child pornography. According to the new plea agreement's stipulated factual basis and unrebutted statements in the Presentence Investigation Report (PSR), agents conducting an investigation into the use of a computer program called LimeWire determined that Scott's computer `was actively downloading and possessing child pornography.’ The agents were able to download three illicit videos from the `shared’ file folder on Scott's computer associated with LimeWire, and through a forensic examination of Scott's computer confirmed that those videos were downloaded from the internet.

U.S. v. Scott, supra (emphasis in the original).

The court goes on to explain that Scott informed the

agents that he used LimeWire and Bit Torrent, which the PSR identifies as file-sharing programs. Scott also admitted using `search terms . . . consistent with child pornography videos/images’ on those two programs. But the record does not contain an admission or other direct evidence that Scott knew he was making child pornography available to others or was aware of LimeWire's default file-sharing setting.

In calculating Scott's Sentencing Guidelines range, however, the PSR applied a five-level enhancement under U.S.Sentencing Guidelines § 2G2.2(b)(3)(B) for `[d]istribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.’ Scott objected and suggested that the two-level enhancement under § 2G2.2(b)(3)(F) for `[d]istribution other than distribution described in subdivisions (A) through (E)’ applied instead. The addendum to the PSR disagreed, explaining that Scott `had the file sharing function of [LimeWire] turned on . . . allowing him to not only receive . . . but to “distribute” child pornography,’ and noting that § 2G2.2(b)(3)(B) applies when a defendant trades child pornography in exchange for more child pornography. 

Scott submitted the same objection to the district court, pointing out that he was convicted of possession, not distribution, and arguing that there was no evidence that he knew he was making pornography available to others or that he was a sophisticated computer user who might be presumed cognizant of his sharing. The district court overruled the objection in a written memorandum, citing this court's decision in U.S. v. Groce, 784 F.3d 291 (U.S. Court of Appeals for the 5^th Circuit 2015), along with the conclusion that `Scott, by using Limewire and other peer-to-peer file sharing programs, agreed to share the child pornography he gathered.’

U.S. v. Scott, supra.

The District Court Judge then

sentenced Scott to 108 months in prison. It also imposed a lifetime term of supervised release with special conditions including absolute bans on (1) having `access to any computer that is capable of internet access’ or (2) having `unsupervised contact with anyone under the age of 18,’ and requirements that he (3) register as a sex offender and (4) `consent to installation of monitoring software on any computer to which [he] has access.’ Scott timely appealed his sentence.

U.S. v. Scott, supra.

The Court of Appeals went on to explain that it reviews

criminal sentences -- including conditions of supervised release -- using a two-step abuse-of-discretion standard. U.S. v. Richardson, 676 F.3d 491 (U.S. Court of Appeals for the 5th Circuit 2012); U.S. v. Rodriguez, 558 F.3d 408 (U.S. Court of Appeals for the 5th Circuit 2009). First, we ensure that the district judge committed no significant procedural error such as improperly calculating the Sentencing Guidelines range. U.S. v. Richardson, supra. Second, we review the substantive reasonableness of the sentence for abuse of discretion. Id. We review the district court's interpretation of the Guidelines de novo, and its factual findings for clear error. Id.

U.S. v. Scott, supra.

In his appeal, Scott argued that the District Court Judge

committed procedural error by applying an incorrect sentencing enhancement. A five-level sentencing enhancement applies to § 2252A(a)(5)(B) convictions if the offense involved `[d]istribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.’ U.S.S.G. § 2G2.2(b)(3)(B). A two-level enhancement applies for `[d]istribution other than distribution described in subdivisions (A) through (E).’ Id. § 2G2.2(b)(3)(F). As with all sentencing enhancements, the prosecution has the burden of proving § 2G2.2(b)(3)(B)'s applicability by a preponderance of the evidence. See U.S.. v. Juarez, 626 F.3d 246 (U.S. Court of Appeals for the 5th Circuit 2010).

It is undisputed that `”distribution as defined in § 2G2.2 includes operating a file sharing program that enables other participating users to access and download files [then automatically] placed in a shared folder” available to other users.’ U.S. v. Baker, 742 F.3d 618, 620 (U.S. Court of Appeals for the 5<sup>th</sup> Circuit 2014) (alteration in original) (quoting U.S. v. Dodd, 598 F.3d 449, 452–53 (U.S.Court of Appeals for the 8th Circuit 2010)); see also United States v. Richardson, 713 F.3d 232, 236 (U.S. Court of Appeals for the 5<sup>th</sup> Circuit 2013). But the parties contest whether Scott distributed child pornography `for the receipt, or expectation of receipt, of a thing of value’ so as to warrant the five-level enhancement.

U.S. v. Scott, supra.

Since the Court of Appeals could not “ascertain whether the district court made the requisite finding that Scott `knowingly’ used LimeWire to `download and distribute child pornography’ within the meaning of §2G2.2(b)(3)(B)”, it remanded the case to the District Court Judge for the judge “to determine whether the Government has met its burden of proving by a preponderance of the evidence that Scott knowingly used LimeWire in `the kind of exchange contemplated by § 2G2.2(b)(3)(B).’ See U.S. v. Groce, supra; U.S. v. Register, 931 F.2d 308 (U.S. Court of Appeals for the 5^th Circuit 1991) . . .  U.S. v. Scott, supra (emphasis in the original).

The court then took up Scott’s challenge to the “supervised release terms” imposed upon him by the District Court Judge.  U.S. v. Scott, supra.  It began by noting that a

`district court has wide, but not unfettered, discretion in imposing terms and conditions of supervised release.’ U.S. v. Duke, 788 F.3d 392 (U.S. Court of Appeals for the 5^th Circuit  2015) (per curiam). That discretion is cabined in two ways:

`First, the condition of supervised release must be “reasonably related” to one of four statutory factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant; (2) the need for deterrence of criminal conduct; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with vocational training, medical care, or other correctional treatment. Second, the condition must be narrowly tailored such that it does not involve a “greater deprivation of liberty than is reasonably necessary” to fulfill the purposes set forth in [18 U.S.C.] § 3553(a).’

Id. (citation omitted). Scott argues that his supervised release terms violate these standards. 

U.S. v. Scott, supra.  The Court of Appeals noted that it would “first address the standard of review, then turn to the merits.” U.S. v. Scott, supra. 

As to the standard of review to be applied, the court explained that

[a]buse-of-discretion review typically applies to conditions of supervised release, but plain-error review applies if the defendant fails to object in the district court. U.S. v. Weatherton, 567 F.3d 149 (U.S. Court of Appeals for the 5^th Circuit 2009). Scott did not object to the length of his supervised release term or any of its conditions when the district court announced them at sentencing. And his argument that abuse-of-discretion review should nonetheless apply because he `had no pre-hearing notice’ of the length or terms of supervised release fails. 

Scott cites no case in which this court has reviewed an unpreserved, alleged sentencing error for abuse of discretion on this lack-of-notice theory. To the contrary, when a defendant argued for the first time on appeal that special conditions were unreasonable and improperly imposed without pre-hearing notice, we recently reviewed both arguments for plain error. See U.S. v. Weatherton, supra; see also U.S. v. Oliphant, 456 F. App'x 456 (U.S. Court of Appeals for the 5^th Circuit 2012) (per curiam) (expressing doubt as to whether `there is a notice requirement for any conditions of supervised release’). And despite Scott's conclusory assertion that objecting would have been futile, there is no indication that he was prevented from doing so. Indeed, after the special conditions were announced, counsel asked the district court to recommend a drug-abuse treatment program—and the court agreed. Cf. U.S. v. Salazar, 743 F.3d 445 (U.S. Court of Appeals for the 5^th Circuit 2014) (reviewing for abuse of discretion because the district court repeatedly interrupted counsel's attempts to object).

U.S. v. Scott, supra. 

The Court of Appeals therefore reviewed Scott’s

term of supervised release for plain error only. Under this standard of review, `[w]hen there was (1) an error below, that was (2) clear and obvious, and that (3) affected the defendant's substantial rights, a  court of appeals has the discretion to correct it but no obligation to do so.’ U.S. v. Hughes, 726 F.3d 656, 659 (U.S. Court of Appeals for the 5<sup>th</sup> Circuit 2013) (quoting U.S. v. Trejo, 610 F.3d 308, 319 (U.S. Court of Appeals for the 5<sup>th</sup> Circuit 2010)). `In considering whether an error is “clear or obvious” we look to the ‘state of the law at the time of appeal,’ and we must decide whether controlling circuit or Supreme Court precedent has reached the issue in question, or whether the legal question would be subject to ‘reasonable dispute.’ U.S. v. Fields, 777 F.3d 799, 802 (U.S. Court of Appeals for the 5^th Circuit 2015) (footnote omitted). Even if the first three prongs are met, a court of appeals should `remedy the error only if it “seriously affected the fairness, integrity or public reputation of the judicial proceedings.”’ Trejo, 610 F.3d at 319 (quoting U.S. v. Olano, 507 U.S. 725 (1993)).

U.S. v. Scott, supra (emphases in the original).

The court then took up Scott’s challenges to “the special conditions that, for the rest of his life, he cannot `have access to any computer that is capable of internet access’ or `have unsupervised contact with anyone under the age of 18.’”  U.S. v. Scott, supra.  It went on to explain that Scott’s

strongest challenges are to the special conditions that, for the rest of his life, he cannot `have access to any computer that is capable of internet access’ or `have unsupervised contact with anyone under the age of 18.’ Shortly after Scott's sentencing, this court found erroneous the same lifetime conditions imposed on a defendant who pleaded guilty to receiving child pornography. See U.S. v. Duke, supra. We noted that `[n]o circuit court of appeals has ever upheld’ an absolute lifetime ban on using any computer with internet access, and found it `hard to imagine that such a sweeping, lifetime ban could ever satisfy [18 U.S. Code] § 3583(d)'s requirement that a condition be narrowly tailored to avoid imposing a greater deprivation than reasonably necessary.’ U.S. v. Duke, supra.  We then explained that computer bans must `be narrowly tailored either by scope or by duration’ because, among other reasons, `the ubiquity and importance of the Internet to the modern world makes an unconditional, lifetime ban unreasonable.’ U.S. v. Duke, supra. We similarly reasoned that association bans, such as the condition prohibiting all unsupervised contact with minors, must `be narrowly tailored to achieve some balance between protecting the defendant's liberty interest and the government's interest in protecting the public.’ U.S. v. Duke, supra. Even construing the broadly worded contact-with-minors provision to `permit incidental or chance encounters with minors,’ we held the absolute lifetime ban `unreasonably broad’ given its lack of tailoring by duration or scope and the fact that—as here—Duke did not have any history of directly abusing a child. See U.S. v. Duke, supra.

U.S. v. Scott, supra. 

The Court of Appeals went on to explain that

[a]s the Government concedes, the first two prongs of plain-error review are met because these two conditions, identical to those in Duke, are clearly erroneous at the time of appellate review. See Henderson v. U.S., 185 L.Ed.2d 85 (2013); U.S. v. Fields, 777 F.3d 799, 802 (U.S. Court of Appeals for the 5^th Circuit 2015). The errors affected Scott's substantial rights because, had the district judge known how Duke would be resolved when she sentenced Scott for a similar crime with a shorter statutory maximum, she presumably would not have imposed the same unconditional and highly restrictive lifetime bans.

Finally, regarding whether we should exercise our discretion to grant relief under the strict requirements of the plain-error standard's fourth prong, we are not bound by the Government's concession of reversible error, U.S. v. Castaneda, 740 F.3d 169, 171 (U.S. Court of Appeals for the 5^th Circuit 2013) (per curiam), but we take into account the Government's position, candidly expressed in its brief and in oral argument, that the fourth prong is satisfied. This court recently highlighted that errors warranting fourth-prong correction are rare and egregious. See U.S. v. Segura, 747 F.3d 323, 331 (U.S. Court of Appeals for the 5^th Circuit 2014). `[U]ltimately, whether a sentencing error seriously affects the fairness, integrity, or public reputation of the judicial proceedings is dependent upon the degree of the error and the particular facts of the case.’ U.S. vJohn, 597 F.3d 263, 288 (U.S. Court of Appeals for the 5^th Circuit 2010).

U.S. v. Scott, supra. 

The court then enunciated its ruling in the case, noting that

Government counsel argued for correction of the plain errors here because Scott—a young man—otherwise would face severe lifelong limits on his freedom of association and his ability to reintegrate into society that would not have been imposed if the district judge had the benefit of Duke, decided shortly after Scott's sentencing. On these particular facts, we agree.

Thus, expressing no opinion on whether we would correct these errors if the Department of Justice had not taken the position that the fourth prong is met, we exercise our discretion to do so under these circumstances. We note, however, our disagreement with the Government's position, stated in its brief, that `[r]emand for re-sentencing . . . is thus required.’ Our discretion on the fourth prong . . . is broad enough that it reasonably could have been exercised here to deny resentencing; that decision, ultimately, is the court's, not the Government's. See, e.g., Young v. U.S., 315 U.S. 257 (1942) (emphasizing that the court of appeals must independently examine any alleged errors).

Accordingly, we vacate the district court's impositions of lifetime bans on accessing any computer with internet capability and having any unsupervised contact with minors. If the district court decides to impose similar conditions on remand, it may modify them by, among other things, reducing their duration or conditioning computer usage or contact with minors on court or probation-officer approval. . . .

U.S. v. Scott, supra. 

The NIT Warrant, the Federal Magistrate and Jurisdiction

This post examines an opinion from the U.S. District Court for the District of Massachusetts:  U.S. v. Levin, 2016 WL 1589824 (2016).  The U.S. District Court Judge who has the case began the opinion by explaining that Alex Levin is:

charged with possession of child pornography. Complaint 1, ECF No. 1. The government obtained evidence of Levin's alleged crime in three steps. First, it seized control of a website that distributed the illicit material at issue (`Website A’). Next, it obtained a series of search warrants that allowed the government to identify individual users who were accessing content on Website A. One of these warrants involved the deployment of a Network Investigative Technique (the `NIT Warrant’). Finally, the government searched the computers of certain of these individuals, including Levin.

Levin has moved to suppress the evidence obtained as a result of the issuance of the NIT Warrant, arguing that the NIT Warrant is void for want of jurisdiction under the Federal Magistrates Act, 28 U.S.C. § 636(a), and additionally that it violated FederalRule of Criminal Procedure 41(b). Def.'s Mot. Suppress Evidence (`Def.'s Mot.’) 5-6, ECF No. 44. The government contends that the NIT Warrant was valid and that, in any event, suppression is not an appropriate remedy on these facts. Gov't's Resp. Def.'s Mot. Suppress (`Gov't's Resp.’) 1, ECF No. 60.

U.S. v. Levin, supra.

The opinion then outlines how, and why, the prosecution arose:

This case involves a far-reaching and highly publicized investigation conducted by the Federal Bureau of Investigation in early 2015 to police child pornography. The investigation focused on Website A, which was accessible to users only through the `Tor’ network — software designed to preserve users' anonymity by masking their IP addresses. . . . 

As an initial step in their investigation, FBI agents seized control of Website A in February 2015. See id. at 21-23. Rather than immediately shutting it down, agents opted to run the site out of a government facility in the Eastern District of Virginia for two weeks in order to identify — and ultimately, to prosecute — users of Website A. See id. at 23. To do this required the deployment of certain investigative tools. . . .

To that end, the government sought and obtained a series of warrants. First, on February 20, 2015, the government procured an order pursuant to Title III from a district judge in the Eastern District of Virginia permitting the government to intercept communications between Website A users. Def.'s Mot., Ex. 2 (`Title III Warrant’), ECF No. 44-2. Second, also on that date, the government obtained a warrant from a magistrate judge in the Eastern District of Virginia to implement a Network Investigative Technique (“NIT”) that would allow the government covertly to transmit computer code to Website A users. NIT Warrant, ECF No. 44-3. This computer code then generated a communication from those users' computers to the government-operated server containing various identifying information, including those users' IP addresses. See Aff. Supp. NIT Warrant 24-26.

U.S. v. Levin, supra.

The opinion also goes on to explain that, through the use of the NIT, 

government agents determined that a Website A user called `Manakaralupa’ had accessed several images of child pornography in early March 2015, and they traced the IP address of that user to Levin's home address in Norwood, Massachusetts. Def.'s Mot., Ex. 1 (`Residential Warrant’), Aff. Supp. Application for Search Warrant (`Aff. Supp. Residential Warrant’) 11-12, ECF No. 44-1. On August 11, 2015, law enforcement officials obtained a third and final warrant (the `Residential Warrant’) from Magistrate Judge Bowler in this District to search Levin's home.  See Residential Warrant. Agents executed the Residential Warrant on August 12, 2015, and in their search of Levin's computer, identified eight media files allegedly containing child pornography. See Compl., Ex. 2, Aff. Supp. Application Criminal Compl. ¶ 7, ECF No. 1-2.

Levin was subsequently indicted on one count of possession of child pornography, 18 U.S. Code § 2252A(a)(5)(B). Indictment, ECF No. 8. He has since moved to suppress all evidence seized pursuant to the NIT Warrant and the Residential Warrant. Def.'s Mot. After holding a hearing on March 25, 2016, the Court took Levin's motion under advisement. . . . 

U.S. v. Levin, supra.

The opinion also explains that in

support of his motion to suppress, Levin contends that the NIT Warrant violated the territorial restrictions on the issuing magistrate judge's authority, and further that the evidence obtained pursuant to the NIT Warrant must be suppressed in light of law enforcement agents' deliberate disregard for the applicable rules and the prejudice Levin suffered as a consequence. . . . The government refutes each of these arguments, and additionally argues that the good-faith exception to the exclusionary rule renders suppression inappropriate. 

U.S. v. Levin, supra.

The District Court Judge began his analysis of Levin’s argument by explaining that

Levin argues that the issuance of the NIT Warrant ran afoul of both Section 636(a) of the Federal Magistrates Act and Rule 41(b) of the Federal Rules of Criminal Procedure. See Def.'s Mot. 5-7, 12. The conduct underlying each of these alleged violations is identical: the magistrate judge's issuance of a warrant to search property located outside of her judicial district. See id. Moreover, because Section 636(a) expressly incorporates any authorities granted to magistrate judges by the Federal Rules of Criminal Procedure, . . . the Court's analyses of whether the NIT Warrant was statutorily permissible and whether it was allowed under Rule 41(b) are necessarily intertwined.

U.S. v. Levin, supra.

Hewent on to analyze the applicability of the Federal Magistrates Act and Rule 41(b): 

Section 636(a) of the Federal Magistrates Act establishes jurisdictional limitations on the power of magistrate judges[.]’ U.S. v. Krueger, 809 F.3d 1109, 1122 (U.S. Court of Appeals for the 10th Circuit 2015) (Gorsuch, J., concurring). It provides, in relevant part:

(a) Each United States magistrate judge serving under this chapter shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law--

(1) all powers and duties conferred or imposed . . . by law or by the Rules of Criminal Procedure[.]

28 U.S. Code § 636(a).

Levin argues that the magistrate judge's issuance of a warrant to search property outside of her judicial district violated the territorial restrictions provided in the first paragraph of Section 636(a). Def.'s Mot. 12. In other words, because the NIT Warrant approved a search of property outside the Eastern District of Virginia (`the district in which sessions are held by the court that appointed the magistrate’), and neither of the other clauses in the first paragraph of Section 636(a) applies, Levin contends that the magistrate judge lacked jurisdiction to issue it. See id. The government, for its part, notes that Levin does not meaningfully distinguish between the requirements of the statute and of Rule 41(b), and advances the same arguments to support the magistrate judge's authority to issue the NIT Warrant under Section 636(a) and under Rule 41(b). Gov't's Resp. 21.

As discussed in more detail infra . . ., the Court is persuaded by Levin's argument that the NIT Warrant indeed purported to authorize a search of property located outside the district where the issuing magistrate judge sat. The magistrate judge had no jurisdiction to issue such a warrant under the first paragraph of Section 636(a). The Court also concludes that Section 636(a)(1) is inapposite because Rule 41(b) did not confer on the magistrate judge authority to issue the NIT Warrant Levin challenges here, . . . and the government points to no other `law or . . . Rule[ ] of Criminal Procedure’ on which the magistrate judge could have based its jurisdiction pursuant to Section 636(a)(1). . . .. Consequently, the Court holds that the Federal Magistrates Act did not authorize the magistrate judge to issue the NIT Warrant here.

U.S. v. Levin, supra.

The District Court Judge then took up the issue as to whether Rule 41(b) of the Federal Rules of Criminal Procedure authorized the Magistrate Judge to issue the NIT Warrant:

Rule 41(b), titled `Authority to Issue a Warrant, provides as follows:

At the request of a federal law enforcement officer or an attorney for the government:

(1) a magistrate judge with authority in the district — or if none is reasonably available, a judge of a state court of record in the district — has authority to issue a warrant to search for and seize a person or property located within the district;

(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;

(3) a magistrate judge — in an investigation of domestic terrorism or international terrorism — with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district;

(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both; and

(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in the District of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within any of the following:

(A) a United States territory, possession, or commonwealth;

(B) the premises — no matter who owns them — of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission's purposes; or

(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.

U.S. v. Levin, supra.

The judge went on to explain that the prosecution

argues for a liberal construction of Rule 41(b) that would authorize the type of search that occurred here pursuant to the NIT Warrant. See Gov't's Resp. 18-20. Specifically, it argues that subsections (1), (2), and (4) of Rule 41(b) are each sufficient to support the magistrate judge's issuance of the NIT Warrant. Id. This Court is unpersuaded by the government's arguments. Because the NIT Warrant purported to authorize a search of property located outside the Eastern District of Virginia, and because none of the exceptions to the general territorial limitation of Rule 41(b)(1) applies, the Court holds that the magistrate judge lacked authority under Rule 41(b) to issue the NIT Warrant. . . .

The government advances two distinct lines of argument as to why Rule 41(b)(1) authorizes the NIT Warrant. One is that all of the property that was searched pursuant to the NIT Warrant was actually located within the Eastern District of Virginia, where the magistrate judge sat: since Levin — as a user of Website A — `retrieved the NIT from a server in the Eastern District of Virginia, and the NIT sent [Levin's] network information back to a server in that district,’ the government argues the search it conducted pursuant to the NIT Warrant properly can be understood as occurring within the Eastern District of Virginia. Gov't's Resp. 20. This is nothing but a strained, after-the-fact rationalization. In its explanation of the `Place to be Searched,’ the NIT Warrant made clear that the NIT would be used to `obtain[ ] information” from various “activating computers[.]’ NIT Warrant 32.

As is clear from Levin's case — his computer was in Massachusetts — at least some of the activating computers were located outside of the Eastern District of Virginia. That the Website A server is located in the Eastern District of Virginia is, for purposes of Rule 41(b)(1), immaterial, since it is not the server itself from which the relevant information was sought. See U.S.v. Michaud, 2016 WL 337263 at *6 (U.S. District Court for the Western District of Washington Jan. 28, 2016) (examining the permissibility of the same NIT Warrant and concluding that Rule 41(b)(1) did not authorize the search `because the object of the search and seizure was Mr. Michaud's computer, not located in the Eastern District of Virginia’).

U.S. v. Levin, supra.

The judge then pointed out that the

government's other argument is that where, as here, it is impossible to identify in advance the location of the property to be searched, Rule 41(b)(1) ought be interpreted to allow `a judge in the district with the strongest known connection to the search’ to issue a warrant. See Gov't's Resp. 20. This argument fails, though, because it adds words to the Rule. See Lopez-Soto v. Hawayek, 175 F.3d 170, 173 (U.S. Court of Appeals for the 1<sup>st</sup> Circuit 1999) (`Courts have an obligation to refrain from embellishing statutes by inserting language that Congress opted to omit’).

U.S. v. Levin, supra.

He went on to address the applicability of two other provisions of Rule 41 of the Federal Rules of Criminal Procedure, beginning with Rule 41(b)(2), explaining that it

confers on magistrate judges the authority `to issue a warrant of a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed.’ Fed. R. Crim. P. 41(b)(2). The government argues that because the NIT (i.e., the computer code used to generate the identifying information from users' computers) was located in the Eastern District of Virginia at the time the warrant was issued, this subsection applies. Gov't's Resp. 19. As discussed above, however, the actual property to be searched was not the NIT nor the server on which it was located, but rather the users' computers. Therefore, Rule 41(b)(2) is inapposite.

U.S. v. Levin, supra.

Next, the judge took up the possible applicability of Rule41(b)(4), noting that he was

similarly unpersuaded by the government's argument regarding Rule 41(b)(4), which authorizes magistrate judges in a particular district `to issue a warrant to install within the district a tracking device,’ even where the person or property on whom the device is installed later moves outside the district, see Fed. R. Crim. P. 41(b)(4). The government likens the transmittal of the NIT to Website A users' computers to the installation of a tracking device in a container holding contraband, insofar as each permits the government to identify the location of illegal material that has moved outside the relevant jurisdiction. Gov't's Resp. 19-20. This analogy does not persuade the Court that the NIT properly may be considered a tracking device, regardless of where the `installation’ occurred.

U.S. v. Levin, supra.

The District Court Judge then took up the issue of “suppression,” explaining that

[h]aving concluded that neither the Federal Magistrates Act nor Rule 41(b) authorized the issuance of the NIT Warrant, the Court now turns to the question of whether suppression of the evidence obtained pursuant to the NIT Warrant is an appropriate remedy. Levin argues that this evidence ought be suppressed because the magistrate judge lacked jurisdiction to issue the NIT Warrant and because Levin was prejudiced by the Rule 41 violation. . . . The government argues that even if the issuance of the NIT Warrant was not sanctioned by Rule 41 or Section 636(a), suppression is too extreme a remedy, as any violation of the relevant rule or statute was merely ministerial and there was no resulting prejudice to Levin. . . . Further, the government contends that the good-faith exception to the exclusionary rule ought preclude suppression of the evidence seized. . . .

The Court concludes that the violation at issue here is distinct from the technical Rule 41 violations that have been deemed insufficient to warrant suppression in past cases, and, in any event, Levin was prejudiced by the violation. Moreover, the Court holds that the good-faith exception is inapplicable because the warrant at issue here was void ab initio.

U.S. v. Levin, supra.

He then took up Levin’s motion to suppress noting, that the prosecution argued that

even if the NIT Warrant violated the Federal Magistrates Act and Rule 41(b), the Court ought not exclude the evidence seized pursuant to the NIT Warrant because the law enforcement officers here acted in good faith. See Gov't's Resp. 21 (citing U.S. v. Leon, 468 U.S. 897 (1984)). Whether the good-faith exception applies where a warrant was void is a question of first impression in this Circuit, and an unresolved question more broadly. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 1.3(f) n.60. . . . This Court holds that it does not.

In Leon, the Supreme Court held that suppression was unwarranted where evidence was obtained pursuant to a search warrant that was later determined to be unsupported by probable cause, since the executing officers acted in objectively reasonable reliance on the warrant's validity. See U.S. v. Leon, supra. In reaching this conclusion, the Supreme Court observed that `[r]easonable minds frequently may differ on the question whether a particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate judge's determination.’ U.S. v. Leon, supra.

Leon contains not the slightest suggestion, however, that the same deference ought apply when magistrate judges determine their own jurisdiction. Indeed, the Supreme Court's conclusion presupposes that the issuing magistrate judge was authorized to issue the challenged warrant. . . .  Moreover, Leon deals explicitly with a `subsequently invalidated warrant,’ . . . rather than a warrant that was void at the time of its issuance. The latter raises qualitatively different concerns, as several post-Leon courts have recognized.

U.S. v. Levin, supra (emphasis in the original).

The judge went on to explain that in the years since the Leon case was decided, the

Supreme Court has expanded the good-faith exception to contexts beyond those Leon specifically addressed. None of the Supreme Court's post-Leon good-faith cases, however, involved a warrant that was void ab initio, and therefore none direct the conclusion that the good–faith exception ought apply to this case. This Court is aware of only one federal circuit court to address the question of whether Leon's good-faith exception applies in these circumstances: the Sixth Circuit. See U.S. v. Master, 614 F.3d 236 (U.S. Court of Appeals for the 6^th Circuit 2010); U.S. v. Scott, 260 F.3d 512 (U.S. Court of Appeals for the 6^th Circuit 2001). Scott involved a search warrant issued by a retired judge who lacked authority to do so. . . . After holding that such warrant was necessarily void ab initio, . . . the court concluded that, `[d]espite the dearth of case law, we are confident that Leon did not contemplate a situation where a warrant is issued by a person lacking the requisite legal authority.’ Id. 

Nine years later, the Sixth Circuit effectively reversed itself in Master, which involved a warrant issued by a state judge to search property outside his district, which was unauthorized under Tennessee law. . . . The court held that the warrant was invalid for the same reason as was the warrant in Scott, . . . but that the good-faith exception to the exclusionary rule applied because Scott's reasoning was `no longer clearly consistent with current Supreme Court doctrine.’ . . . [I]t noted that `t]he Supreme Court has effectively created a balancing test by requiring that in order for a court to suppress evidence following the finding of a Fourth Amendment violation, “the benefits of deterrence must outweigh the costs.”’ U.S. v. Master, supra (quoting Herring v. U.S., 555 U.S. 135 (2000)).

U.S. v. Levin, supra.

The Judge went on to find that the Master court read the Supreme Court’s

recent good-faith cases too broadly This Court is persuaded instead by the rationale in Scott and cases applying the holding of that decision, see, e.g., U.S. v. Neering, 194 F.Supp.2d 620 (U.S. District Court for the Eastern District of Michigan 2002) (warrant issued by an official who was not properly appointed and therefore lacked issuing authority was void, and under Scott, the good-faith exception did not apply). Neither Hudson nor Herring — both of which the Master court cited in support of its conclusion that Scott's holding is no longer tenable — requires the conclusion that the good-faith exception applies to evidence seized pursuant to a warrant that was void ab initio.

Because a warrant that was void at the outset is akin to no warrant at all, cases involving the application of the good-faith exception to evidence seized pursuant to a warrantless search are especially instructive. In U.S. v. Curzi, 867 F.2d 36 (U.S. Court of Appeals for the 1^st Circuit 1989), the First Circuit declined to `recognize[ ] a good-faith exception in respect to warrantless searches.’ . . .To hold that the good-faith exception is applicable here would collapse the distinction between a voidable and a void warrant.

But this distinction is meaningful: the former involves `judicial error,’ such as `misjudging the sufficiency of the evidence or the warrant application's fulfillment of the statutory requirements[,]’ while the latter involves `judicial  authority,’ i.e., a judge `act[ing] outside of the law, outside of the authority granted to judges in the first place.’ State v. Hess, 770 N.W.2d 769 (Wisconsin Court of Appeals 2009); cf. U.S. v. Scott, supra (‘Leon presupposed that the warrant was issued by a magistrate or judge clothed in the proper legal authority, defining the issue as whether the exclusionary rule applied to 'evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause’) . . .; State v. Vickers, 964 P.2d 756 (Montana Supreme Court 1998) (distinguishing Leon and concluding that `[i]f a search warrant is void ab initio, the inquiry stops and all other issues pertaining to the validity of the search warrant, such as whether the purpose of the exclusionary rule is served, are moot’).

Were the good-faith exception to apply here, courts would have to tolerate evidence obtained when an officer submitted something that reasonably looked like a valid warrant application, to someone who, to the officer, appeared to have authority to approve that warrant application. . . . This Court holds that such an expansion of the good-faith exception is improvident, and not required by current precedent.

U.S. v. Levin, supra.

The opinion then goes on to note that,

[e]ven were the Court to hold that the good-faith exception could apply to circumstances involving a search pursuant to a warrant issued without jurisdiction, it would decline to rule such exception applicable here. For one, it was not objectively reasonable for law enforcement -- particularly [`a veteran FBI agent with 19 years of federal law enforcement experience[,]’ Gov't's Resp. 7-8 -- to believe that the NIT Warrant was properly issued considering the plain mandate of Rule 41(b) . See U.S. v. Glover, 736 F.3d 509 (U.S. Court of Appeals for theD.C. Circuit 2013) (`[I]t is quite a stretch to label the government's actions in seeking a warrant so clearly in violation of Rule 41 as motivated by “good faith”’); cf. U.S. v. McKeever, 894 F.2d 712 (U.S.Court of Appeals for the 5th Circuit 1990) (good-faith exception did not apply where sheriff `who was the prime mover in obtaining and executing the search . . . knew both that he had to obtain a warrant from a court of record . . .  and that [the issuing judge] was not a judge of a court of record). Moreover, even analyzed under Herring, the conduct at issue here can be described as `systemic error or reckless disregard of constitutional requirements,’ and the Court thus concludes that suppression is appropriate.

U.S. v. Levin, supra.

The judge therefore held that

[b]ased on the foregoing analysis, the Court concludes that the NIT Warrant was issued without jurisdiction and thus was void ab initio. It follows that the resulting search was conducted as though there were no warrant at all. Since warrantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded. Accordingly, Levin's motion to suppress . . . is GRANTED.

U.S. v. Levin, supra. 

The Email Hack, the "Stolen Domain Names" and Personal Jurisdiction

This post examines a relatively brief opinion ithat was recently ssued by a U.S. District Court Judge who sits in the U.S. District Court for the District of Arizona:  Wu v. BDK DSD, et al., 2016 WL 1059534. The first paragraph of the Complaint Yao Wu filed to initiate the lawsuit states that

Plaintiff brings this action pursuant to 18 U.S. Code § 2510 et seq., 18 U.S.C. § 2701 et seq., and state and federal common law for Defendant’s willful and unlawful access, interception, monitoring and viewing of Plaintiff’s electronic and stored electronic communications without his consent or authorization. Upon information and belief, Defendants illegally gained entry to Plaintiff’s email account and used or removed documents stored on his personal computer by using various methods, including, but not limited to, key loggers and other computer programs designed to enable remote access to, unmask passwords contained on someone else’s computer without leaving a trace. 

Armed with Plaintiff’s personal information, Defendants stole the domain names . . from his account (accessible via his email) with his domain name registrar, eNom, and transferred it to Defendants’ domain name registrar, GoDaddy, in Arizona.

Complaint, Wu v. BDK DSD, et al., supra.

The Complaint goes on to outline factual allegations that, if proven, would support the plaintiff’s (Wu’s) claims against the defendants.  Complaint, Wu v. BDK DSD, et al., supra.  Among other things, the Complaint seeks a judgment that would “[a]ward Plaintiff compensatory damages according to proof at trial but in an amount not less than $100,000.00”.  Prayer for Relief Complaint, Wu v. BDK DSD, et al., supra. 

It also asks that, as part of the judgment, the District Court Judge

[e]nter a temporary and permanent order, pursuant to 18 U.S. Code § 2515 and 18 U.S. Code § 2707(b), enjoining Defendants from directly or indirectly using or disclosing any information contained within any of Plaintiff’s electronic communications, documents attached to any such electronic communication that Defendants may have received, and documents stored on Plaintiff’s personal computers. . . .

Complaint - Prayer for Relief, Wu v. BDK DSD, et al., supra. 

The Complaint was filed with the District Court on September 22, 2015 and initiated Civil Case 2:15-cv-01898-DLR.  Wu v. BDK DSD, et al., supra.

According to the opinion, on February 26, 2016, the District Court Judge who has the case

ordered that Plaintiff show cause why the case should not be dismissed for lack of jurisdiction and venue. (Doc. 18.) In the Order, the Court doubted whether it has personal jurisdiction over Defendant, who has no connection with Arizona, based solely on Defendant's alleged agreement to non-party GoDaddy.com, LLC's terms and conditions of service. The terms and conditions contain an Arizona forum selection clause, which Plaintiff claims subjects Defendant to personal jurisdiction in this forum.

Wu v. BDK DSD, et al., supra. 

The opinion went on to note that

Plaintiff brought suit against Defendant BDK DSD for allegedly hacking into his email accounts and stealing numerous domain names. (Doc. 1, ¶ 1.) Because Defendant's name, address, and country of origin are unknown, the Court permitted service by email. (Doc. 11.)

Plaintiff served Defendant via email, and moved for default judgment after Defendant failed to respond. (Docs. 12, 17.) The Court denied the motion, citing concerns with exercising personal jurisdiction over an unknown Defendant with no connection to Arizona, and ordered Plaintiff to file a supplemental brief addressing the issue. (Doc. 18).

Wu v. BDK DSD, et al., supra.  In a footnote to the above paragraph, the opinion notes that “BDK DSD's listed country of residence appears to be China.” Wu v. BDK DSD, et al., supra. 

The reference to “service by email” in the above paragraph goes to the need, in U.S. civil litigation, for the party who brings the suit (plaintiff) to “serve” the party or parties that are being sued (defendant(s)) with notice that the suit has been filed and with documents that apprise the defendant(s) of what it involves.  

Wikipedia’s entry on “Service of Process” explains what is involved and lists the various options plaintiffs have in effecting service of process, e.g., personal service by an individual engaged to do this or service by mail.  Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure, which you can find here, allows sending service “by electronic means” under certain circumstances.

And, as Wikipedia explains, in civil litigation a default judgment

is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default. The default judgment is the relief requested in the party's original petition.

Default can be compared to a forfeit victory in sports. In a civil trial involving damages, a default judgment will enter the amount of damages pleaded in the original complaint. If proof of damages is required, the court may schedule another hearing on that issue. A party can have a default judgment vacated, or set aside, by filing a motion, after the judgment is entered, by showing of a proper excuse.

Getting back to the opinion, the District Court Judge went on to explain that a court can

exercise personal jurisdiction only when the defendant has sufficient `minimum contacts’ with the forum state `such that jurisdiction does not offend traditional notions of fair play and substantial justice.’ International Shoe Co. v. Washington, 326 U.S. 310 (1945). . . . The minimum contacts requirement may be satisfied by establishing either general or specific jurisdiction. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984).

Here, Plaintiff only argues the Court may exercise specific personal jurisdiction over Defendant.

To establish specific personal jurisdiction, a plaintiff must show: (1) the nonresident defendant purposefully directed his activities at the forum, (2) the claim arises out of the defendant's forum-related activities, and (3) the exercise of jurisdiction is reasonable. See Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (U.S. Court of Appeals for the 9th Circuit 2004). “The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (internal quotation marks omitted). 

Furthermore, `[f]or a State to exercise jurisdiction consistent with due process, the defendant's suit-related conduct must create a substantial connection with the forum State.’ Walden v. Fiore, supra. (emphasis added).

Wu v. BDK DSD, et al., supra. 

The District Court Judge went on to point out that the

Plaintiff argues that Defendant `entered into contracts with Arizona-based GoDaddy concerning the stolen domain names at issue.’ (Doc. 19 at 1.) By stealing the domain names, Plaintiff asserts Defendant `agreed to be subject to personal jurisdiction for disputes concerning the registration and use of these stolen domain names’ in Arizona. (Id.at 2 (emphasis in original).) The Court disagrees.

Wu v. BDK DSD, et al., supra. 

The judge went on to explain that the

only connection Defendant is alleged to have with Arizona is based on GoDaddy's terms and conditions, which contain a forum selection clause. The clause provides:

`any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Maricopa County, Arizona, and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of Maricopa County, Arizona.’

(Doc. 20-1 at 25.) Under general contract principles, a forum selection clause may give rise to waiver of objections to personal jurisdiction, provided that the defendant agrees to be so bound[.]” Holland Am. Line Inc. v. Wartsila N.A., Inc., 485 F.3d 450, 458 (U.S. Court of Appeals for the 9th Circuit 2007) (internal citations omitted).

Plaintiff relies on Productive People, LLC v. Ives Design, No. CV-09-1080-PHX-GMS, 2009 WL 1749751 (U.S. District Court for the District of Arizona June 18, 2009), to support his argument that the Court has personal jurisdiction over Defendant based solely on the forum selection clause. In that case, the plaintiff brought suit in Arizona against Ives Design, a Colorado company, for trademark infringement arising out of its use of the plaintiff's `NAMEDROP’ mark by operating `namedrop.com.’ Id. at *1.

The plaintiff also named GoDaddy.com as a defendant because it served as the host for the domain name. Id. Ives Design argued that the court lacked personal jurisdiction over it because it had no contacts with Arizona. Id. But the court did not decide whether Ives Design had sufficient contacts with the forum for purposes of specific personal jurisdiction. Id. 

Instead, the court resolved the jurisdictional question based on Ives Design's undisputed agreement to GoDaddy's terms of service agreement when it purchased the domain name from GoDaddy. Id. The terms of service agreement contained an Arizona forum selection clause, which the court found sufficient to create personal jurisdiction over Ives Design. Id. at *2.

Wu v. BDK DSD, et al., supra (emphasis in the original).

The judge then explained that the decision in

Productive People is distinguishable from this case. There, it was undisputed that Ives Design agreed to be bound by the forum selection clause, especially given that it directly contracted with GoDaddy to purchase the domain. In other words, Ives Design chose to contract away its right to raise certain defenses. 

Here, GoDaddy is not a party, and Defendant did not contract with GoDaddy to purchase the domain names. Defendant stole them. Though certainly illegal, such conduct hardly represents an agreement to be bound by the forum selection clause. Nor does it suggest Defendant contracted away the right to assert the defense. 

Much like contract formation, personal jurisdiction based on a forum selection clause is grounded on some form of consent, see S.E.C. v. Ross, 504 F.3d 1130, 1149 (U.S. Court of Appeals for the 9^th Circuit 2007) (`the parties may consent to jurisdiction through a forum selection clause in a contract’), but the Court finds no consent here. 

Thus, the Court cannot exercise personal jurisdiction over a nonresident Defendant based on a provision in a contract to which Defendant is not a party.

Wu v. BDK DSD, et al., supra. 

He also pointed out that,

[i]n addition, the Court finds that it lacks specific personal jurisdiction over Defendant. Defendant has no contact with Arizona and did not cause harm in Arizona. If anything, Defendant directed his illegal activities at California, the location of Plaintiff's residence, and presumably, his home computer containing the emails and information related to the domain names.

Certainly, Defendant's `suit-related conduct,’ i.e., hacking into Plaintiff's computer files and stealing several domain names, does not create a `substantial connection’ with Arizona sufficient to create specific jurisdiction. See den v. Fiore, supra. Plaintiff has failed to demonstrate that this Court's exercise of personal jurisdiction over Defendant would be consistent with due process, and has therefore failed to show cause to avoid dismissal.

Wu v. BDK DSD, et al., supra. 

The District Court Judge therefore held that

IT IS ORDERED that Plaintiff's motion for default judgment . . . is DENIED. Plaintiff has not shown cause in accordance with the Court's February 26, 2016 Order . . . and thus Plaintiff's complaint is dismissed. The Clerk is directed to terminate this action.

Wu v. BDK DSD, et al., supra (emphasis in the original). 
(I'm posting this today because I'm going to be tied up all day Monday and wouldn't  be able to post it then.)