Friday, April 18, 2014

Child Pornography, RoundUp and the Franks hearing

After the federal government charged Paul Case with distribution and possession of child pornography in violation of 18 U.S. Code §§ 2252(a)(2) and 2252(a)(4)(B), he

[moved, pursuant] to Franks v.Delaware, 438 U.S. 154 (1978), to suppress evidence obtained pursuant to a search warrant, arguing that the agent who applied for the warrant misled the issuing magistrate judge by failing to disclose the FBI's use of an automated computer program to discover child pornography files on defendant's computer available for download through a peer-to-peer (`P2P’) file sharing network. 

U.S. v. Case, 2014 WL 1052946 (U.S. District Court for the Eastern District of Wisconsin 2014). Case also argued, in his motion, that “the program may have infiltrated non-shared, private portions of his computer, in violation of the 4th Amendment.”  U.S. v. Case, supra.  

The U.S. District Court Judge who had the case began his opinion by explaining that

[s]earch warrants enjoy a presumption of validity. See Franks v. Delaware, supra. . . . A defendant is entitled to an evidentiary hearing to examine the sufficiency of a search warrant only if he makes a `substantial preliminary showing’ that the warrant application contained a materially false statement made by law enforcement with deliberate or reckless disregard for the truth and that the false statement was necessary for the finding of probable cause. U.S. v. Williams, 718 F.3d 644, 649 (U.S. Court of Appeals for the 7th Circuit 2013). . . .

A defendant may also challenge an affidavit by demonstrating that the affiant intentionally or recklessly omitted material information. U.S. v. Hoffman, 519 F.3d 672 (U.S. Court of Appeals for the 7th Circuit 2008).

The court need not hold a Franks hearing based on conclusory or generalized assertions. See U.S. v. Currie, 739 F.3d 960 (U.S. Court of Appeals for the 7th Circuit 2014); United States v. Taylor, 154 F .3d 675, 680 (U.S. Court of Appeals for the 7th Circuit 1998). Rather, the defendant must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard. U.S. v. Souffront, 338 F.3d 809 (U.S. Court of Appeals for the 7th Circuit 2003).

Finally, if the allegedly false statements are excluded -- or the omitted facts are included -- and the affidavit still supports a finding of probable cause, no hearing is required. U.S. v. Souffront, supra. . . . See also Betker v. Gomez, 692 F.3d 854, 862 (U.S. Court of Appeals for the 7th Circuit 2012) (`We eliminate the alleged false statements, incorporate any allegedly omitted facts, and then evaluate whether the resulting ‘hypothetical’ affidavit would establish probable cause’).

U.S. v. Case, supra.  If you would like to read about the process a U.S. officer uses to get a search warrant, check out this source.  And if you are interested, you can read more about the process of obtaining a Franks hearing here.

The judge then began his analysis of Case’s arguments, which he outlined here:

[Case’s] argument has evolved throughout the course of these proceedings. In his original objection, supporting materials, and proposed statement, [h]e appeared to make two claims: (1) that the agent lied about the existence of the online covert employee (OCE5023) in order to conceal the use of RoundUp; and (2) that RoundUp allows law enforcement to invade the private spaces of a suspect's computer.

In his reply brief in support of the objection, he appears to abandon the first claim and raises a third—that RoundUp may not be sufficiently reliable. I address each of these three claims in turn.

U.S. v. Case, supra.  

The judge then addressed all three arguments, in order:

Citing other search warrant applications in this district, [Case] contends an FBI directive prevents the disclosure of RoundUp in such affidavits and requires its use be concealed by alleging the participation of a fictitious online covert employee. 

In its response to the objection, the government indicates that OCE–5023 is a real person, whose name is not disclosed given his/her role in covert investigations; the government denies any deception in the warrant affidavit.

[Case] presents no evidence refuting the government's assertion; indeed, in his reply brief he appears to accept it, which dooms his request for a Franks hearing based on deception. . . . 

Instead, he indicates that RoundUp may have been running unattended at the time of the downloads from his computer and argues that an evidentiary hearing is required to determine the reach of this program, how it was used in his case, and whether it is reliable.

U.S. v. Case, supra.  

He then addressed Case’s argument regarding RoundUp’s invading private spaces:

Relying on the articles written by RoundUp's creators, [he] contends that the program surreptitiously enters the private spaces of a target's computer and inserts data into those private spaces. I cannot find any support for that claim in the articles. The authors state: `No unauthorized access to the target's machine is required; tags are inserted in the normal function of a system.’ . . .  

The authors also suggest that the hash value of the tag be provided to the magistrate as part of the search warrant application . . . which controverts [Case’s] claim that agents using the program are instructed to conceal their activities. The articles provide no non-speculative basis for believing that RoundUp may be used to invade private spaces. Nor do the articles discuss tagging in relation to the `Ares’ P2P network, which was used in the present case.

Based on materials defendant previously submitted, it appears that RoundUp for Ares was developed by the Ontario Provincial Police, rather than the computer science professors who wrote the articles upon which [Case] now relies. . . .

In any event, even if RoundUp could be used improperly, [he] makes no claim that the government invaded the private spaces of his computer, to insert tags or to search for evidence, despite the fact that he had forensic experts examine the computer. He admits that he does not know whether tagging was even being used at the time his computer was accessed

[Case] asks for a hearing so the court can determine whether agents used the program to enter the unshared space on his computer, but the district court is required to hold a hearing on a motion to suppress only if the defendant's allegations are sufficiently definite, specific, non-conjectural, and detailed. U.S. v. Curlin, 638 F.3d 562 (U.S. Court of Appeals for the 7th Circuit 2011).

Given the speculative nature of [Case’s] claims, there is no need to hold a hearing and no basis for concluding that illegally obtained evidence was used to obtain the warrant. . . .

U.S. v. Case, supra (footnotes omitted).

[Case] notes that, according to the search warrant affidavit, OCE5023 downloaded files from [his] computer between 2:11 a.m. and 3:33 a.m. on November 25, 2012. [He] presents an affidavit from his computer expert, who indicates that the agent-affiant admitted to him that the computer program was running unattended during the time of the downloads. . . .

Even assuming that the program was running unattended at the time of the downloads, [Case] provides no authority in support of his claim that this precludes a finding of probable cause. 

Nor does he claim that the FBI failed to confirm that the material downloaded was, in fact, child pornography. The warrant affidavit includes a detailed description of three of the files. . . .

This is not a situation where a computer program downloaded material believed to be contraband (based on, say, a keyword search or hash values) and no human being looked at the material before a warrant was sought.

The affidavit further indicates that, after the images were downloaded and confirmed to be child pornography, the FBI identified the IP address from which the images were downloaded and, pursuant to a subpoena to the internet service provider, identified defendant as the subscriber. 

This process is sufficiently reliable to support the issuance of the warrant. . . .

Finally, I decline to hold an evidentiary hearing to explore the reliability and capabilities of RoundUp. Hearings on motions to suppress are not granted as a matter of course. U.S. v. Villegas, 388 F.3d 317 (U.S. Court of Appeals for the 7th Circuit 2004).

District courts are required to conduct evidentiary hearings only when a substantial claim is presented, there are disputed issues of material fact that will affect the outcome of the motion, and the defendant's allegations are sufficiently specific and non-conjectural. . . . . Here, [Case] offers only speculation about RoundUp. Accordingly, there is no basis for holding a hearing.

U.S. v. Case, supra.  

The judge therefore denied Case’s motion to suppress.  U.S. v. Case, supra.  The article you can find here, discusses the use of RoundUp in child pornography investigations.

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