Wednesday, April 23, 2014

Child Pornography, RoundUp and the Subpoena

Not long ago, I did a post on a defendant’s argument that evidence in a child pornography case should be suppressed because investigators used the RoundUp software. A few days ago, I ran across an opinion issued late last year that addressed a variant of that argument. The issue arises in a different context in this case, though.

The case is U.S. v. Brashear, 2013 WL 6065326 (U.S. District Court for the Middle District of Pennsylvania 2013), and this is how it arose:

In 2010, Trooper Matt Powell of the Pennsylvania State Police in Indiana, Pennsylvania, conducted an investigation of peer-to-peer file sharing programs that may have contained child pornography. . . . 

Peer-to-peer file sharing networks enable computer users to share digital files between different network users. . . . Powell used a program called Roundup 1.4.1 (`RoundUp’) to search files available for sharing in the Gnutella peer-to-peer file sharing network. . . .

RoundUp is a modified version of the file sharing software PHEX. . . . RoundUp utilizes a database of `hash values’ from files known to contain child pornography. . . . This database enables law enforcement to identify files with hash values that match the hash values of known child pornography. . . . RoundUp only identifies computer files that are available for downloading from a folder shared with the Gnutella network. . . .

During the court of his investigation, Powell downloaded two videos from the IP address that contained child pornography. . . . [He] identified numerous files associated with child pornography emanating from this same IP address. . . . Comcast Cable Communications controlled the subject IP address. . . . Powell alerted Corporal Thomas Trusal to his findings. . . . 

Trusal obtained a subpoena ordering Comcast to provide subscriber and billing information for this IP address. . . . Based upon an aggregate of investigative materials, including the identification of the registered account holder, [he] secured a search warrant for 1651 Kaiser Avenue, South Williamsport, Pennsylvania, 17702. . . .

[Jeremy T.] Brashear resided in a trailer on the property of the 1651 Kaiser Avenue residence. As a result of information obtained through the execution of the search warrant, Brashear was arrested. . . . Law enforcement eventually secured an additional search warrant for Brashear's trailer and laptop. . . . This search revealed child pornography.

U.S. v. Brashear, supra.

The opinion then explains that on February 24, 2011, a federal grand jury indicted

Brashear for distributing, receiving, and possessing material constituting or containing child pornography, in violation of 18 U.S. Code § 2252A(a). . . . On July 26, 2012, [he] filed a motion . . . to suppress, which the court denied on October 12, 2012. . . . 

On July 25, 2013, Brashear filed an ex parte motion . . . for the issuance and service of a subpoena to compel the Pennsylvania State Police (`PSP’) to provide the source code for RoundUp. Defense counsel explained that he already obtained the PHEX source code and sought access to the RoundUp source code to compare the two. . . .

The court granted the motion on July 26, 2013. . . . On September 23, 2013, Brashear filed a motion . . . to continue trial and jury selection. In support, he averred that, as of that date, the PSP had not produced the required source code. . . .On October 17, 2013, the government filed a motion to quash the subpoena. . . . The government alleges that compliance would be unreasonable and oppressive under Federal Rule of Criminal Procedure 17(c)(2). . . . The motion is fully briefed and ripe for disposition.

U.S. v. Brashear, supra.

The judge began his analysis of the parties’ arguments by noting that Brasher claimed

his subpoena is necessary to determine whether the use of the RoundUp program violated [his] 4th Amendment rights, the Federal Electronic Communications Privacy Act (`FECPA’), 18 U.S. Code § 1510 et seq., the Pennsylvania Wiretapping and Electronic Surveillance Control Act (‘PA Wiretap Act’), 18 [Pennsylvania Consolidated Statutes Annotated] § 5701 et seq., and the Gnutella network protocol.

The government asserts that Brashear is attempting to improperly use Rule 17 as a discovery vehicle, that the source code is subject to the law enforcement privilege, and that the information sought is irrelevant because the use of RoundUp did not violate Brashear's 4th Amendment rights, the FECPA, the PA Wiretap Act, or the Gnutella network protocol.

U.S. v. Brashear, supra.

The judge began the process of ruling on the parties arguments by noting that the

issuance of a subpoena is governed by Federal Rule of Criminal Procedure 17. To obtain a subpoena under Rule 17, the moving party must establish the following:

`(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.”’ U.S. v. Nixon, 418U.S. 683 (1974). The court must reconsider the Nixon standard when disposing of a motion to quash. . . .

U.S. v. Brashear, supra.

The judge then held that he found

the source code for RoundUp is not relevant because its use did not violate Brashear's 4th Amendment rights, the FECPA, and the PA Wiretap Act. Further, any violation of the Gnutella network protocol is irrelevant. 

U.S. v. Brashear, supra.

He began his analysis with the 4th Amendment, finding that the source code for the

RoundUp program is not relevant because investigating the use of a peer-to-peer file sharing program does not violate the 4th Amendment's protection against unreasonable searches. The 4th Amendment provides that `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ U.S. CONST. amend. IV. 

A typical 4th Amendment analysis begins with analyzing whether the defendant possesses a reasonable expectation of privacy in the object being searched. Katz v. U.S., 389 U.S. 347 (1967). . . . Numerous cases have held that there is no reasonable expectation of privacy in files made available to the public through peer-to-peer file sharing programs. . . .

U.S. v. Brashear, supra.

The judge also explained that Brashear

wishes to compare the modified source code for RoundUp with the original PHEX source code, but there is no need. The RoundUp program only accesses files shared through the file sharing network. . . . By sharing files with the network, Brashear essentially shared those files with the public. 

He had no reasonable expectation of privacy over the files shared with Gnutella and, therefore, the use of the RoundUp program could not have violated his 4th Amendment rights.

Brashear responds that, pursuant to U.S.v. Jones, 132 S.Ct. 945 (2012), the use of the RoundUp program constituted a physical trespass of Brashear's `effect’ -- the computer -- and was therefore an unreasonable search.

In Jones, the Court addressed whether the warrantless installation of a GPS tracking device to the defendant's motor vehicle violated his 4th Amendment rights. . . . The Court concluded the defendant's `4th Amendment rights do not rise or fall with the Katz formulation’ concerning the defendant's reasonable expectation of privacy. . . . 

Instead, the Court found the defendant's motor vehicle was an `effect’ and the warrantless physical trespass of that `effect’ to obtain information or evidence constituted an unreasonable search under the 4th Amendment. . . . However, the Court noted that `[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to [the] Katz analysis.’ Id. (emphasis in original).

U.S. v. Brashear, supra.

This judge also pointed out that “several” courts

have rejected the application of Jones to the investigation of file sharing programs.  See Russell v. U.S., 2013 WL 5651358 (U.S. District Court for the Eastern District of Missouri 2013); U.S. v. Brooks, 2012 WL 6562947 (U.S. District Court for the Eastern District of New York 2012); State v. Lemasters,  2013 WL 3463219 (Ohio Court of Appeals 2013).

The court concurs with the rationale of these decisions. The investigation of a file sharing program does not involve any physical trespass onto a constitutionally protected area. Powell did not physically enter Brashear's home or access his computer. Instead, Powell simply used a program that identified child pornography available on a public peer-to-peer file sharing program. This investigation involves `the transmission of electronic signals without trespass’ and does not implicate Brashear's 4th Amendment rights under Jones.

U.S. v. Brashear, supra.

The judge quickly disposed of Brashear’s remaining arguments.  He noted, first, that

Brashear also alleges that the subpoena is relevant to determining whether the warrantless use of RoundUp violated the FECPA and the PA Wiretap Act. Brashear provides no explanation for how these statutes potentially apply in the case sub judice and the court is unaware of any possible violation of these laws.

U.S. v. Brashear, supra.

And, finally, he noted that Brashear

states that the use of RoundUp violates Section 4.4 of the Gnutella network protocol, which requires that users who are able to download files must also be able to share files with others. . . . Trusal testified that RoundUp is only able to download files from another computer and is not able to upload any files. . . .

It is unclear how obtaining the RoundUp source code would shed any further light on this alleged violation. Moreover, Brashear does not posit how this alleged violation is relevant in the case sub judice. Indeed, application of the exclusionary rule is typically reserved for violations of a constitutional dimension. . . .

U.S. v. Brashear, supra.

The judge therefore held that the source code for RoundUp

is simply not relevant to determining any issue in the case. There is no indication that the use of RoundUp violated Brashear's rights under the 4th Amendment, the FECPA, or the PA Wiretap Act. The potential violation of the Gnutella network protocol is irrelevant. For the above-stated reasons, the court will grant the government's motion to quash.

U.S. v. Brashear, supra.  He then entered an order to that effect, which brought this matter to an end. U.S. v. Brashear, supra.

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