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United States v. Allain

United States District Court, D. Massachusetts

September 29, 2016

UNITED STATES OF AMERICA,
v.
RICHARD ALLAIN, Defendant.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.

         I. Introduction

         On September 3, 2015, a grand jury returned a three-count indictment against Defendant Richard Allain (“Allain”). The indictment charged Allain with one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2), and two counts of receipt of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1). Currently pending are Allain's Motion to Suppress [ECF No. 60] and Motion to Dismiss Count II of the Indictment [ECF No. 62]. Both of the pending motions relate to the FBI's 2015 investigation into “Playpen, ” a website that facilitated the distribution of child pornography.

         In early 2015, after a foreign law enforcement agency informed the FBI that it suspected a United States-based IP address was being used to run Playpen, the FBI seized a copy of the server hosting the site. Rather than immediately shut down Playpen, the FBI continued to operate it for two weeks, in order to identify users of the site. Because Playpen operated on the “Tor” network-a network designed to maintain a user's anonymity-the FBI could not easily identify Playpen users, even after it had seized control of the website. To advance its investigation, the FBI obtained a search warrant (the “NIT Warrant”) authorizing it to deploy a “Network Investigative Technique” (“NIT”) onto any computers used to log into Playpen. By installing the NIT onto Playpen users' computers, the FBI could identify the IP addresses, and eventually the individuals, that logged into the site. The NIT Warrant has already been subject to significant judicial scrutiny across the country. A majority of courts have found that the magistrate judge who issued the NIT Warrant lacked authority to do so, yet declined to suppress evidence. See, e.g., United States v. Ammons, No. 3:16-CR-00011-TBR-DW, 2016 WL 4926438 (W.D. Ky. Sept. 14, 2016); United States v. Henderson, No. 15-CR-00565-WHO-1, 2016 WL 4549108 (N.D. Cal. Sept. 1, 2016); United States v. Michaud, No. 3:15-CR-05351-RJB, 2016 WL 337263 (W.D. Wash. Jan. 28, 2016). A minority of courts have suppressed evidence based on a finding that the warrant was void and the good-faith exception to the exclusionary rule did not apply. See, e.g., United States v. Levin, No. CR 15-10271-WGY, 2016 WL 2596010 (D. Mass. May 5, 2016); United States v. Croghan, No. 1:15-CR-48, 2016 WL 4992105 (S.D. Iowa Sept. 19, 2016).[1]

         On or about February 27, 2015, after Allain logged into Playpen, the NIT was installed onto his computer, located in Framingham, Massachusetts. The information gathered by the FBI from Allain's computer forms the basis of Count 2 of the Indictment. [ECF No. 17].[2]

         On April 27, 2016, Allain filed his Motion to Suppress, in which he moves for an order suppressing all evidence obtained by the government using the NIT Warrant. [ECF No. 60]. Allain raises five independent grounds for suppressing the evidence. He contends that the NIT Warrant was: (1) not supported by probable cause; (2) issued only after the FBI intentionally and recklessly misled the issuing court; (3) an impermissible general warrant; (4) contingent on a “triggering event” that did not occur; and (5) void ab initio, since the issuing magistrate judge did not have authority to issue it. In his Motion to Dismiss Count II of the Indictment, also filed on April 27, 2016, Allain claims that by continuing to operate Playpen during its investigation, and therefore briefly facilitating the distribution of child pornography, the government engaged in outrageous misconduct that warrants dismissal of the resulting charge. [ECF No. 62]. The government filed separate oppositions to the two motions on June 17, 2016 [ECF Nos. 69, 70], and the Court heard oral argument on July 18, 2016. [ECF No. 76]. After oral argument, the government filed three addendums to its response to Defendant's Motion to Suppress [ECF Nos. 74, 77, 79], the second of which the Defendant has moved to strike. [ECF No. 78]. In addition, the Defendant filed a supplemental memorandum in support of his Motion to Dismiss [ECF No. 82], and a supplemental memorandum in support of his Motion to Suppress [ECF No. 83].

         For the reasons stated herein, both motions are hereby DENIED.

         II. The Warrant and Relevant Factual Background

         a. Playpen

         On February 20, 2015, FBI Special Agent Douglas Macfarlane filed an application for a search warrant in the Eastern District of Virginia. [ECF No. 61-2 (the “Warrant Application”)].[3]The subject of that warrant was “Playpen, ” a website “dedicated to the advertisement and distribution of child pornography” and “the discussion of matters pertinent to child sexual abuse.” Playpen operated on the Tor network. Typically, visitors to a public website can be identified by their IP address, but on the Tor network, IP addresses are masked, thus enabling users to access websites anonymously. To access the Tor network, a user must install Tor software either by downloading an add-on to their web browser or by downloading the free “Tor browser bundle.” Id. ¶ 7.

         Further, Playpen operated as a “hidden service” within the Tor network. Id. ¶ 6. Hidden websites within Tor operate the same as other public websites except that the IP address for the web server is hidden and replaced with a Tor-based web address, which is a series of sixteen algorithm-generated characters followed by the suffix “.onion.” Thus, at the time the Warrant Application was submitted, the web address for Playpen was upf45jv3bziuctml.onion. Id. As described in the Warrant Application, “[a] user can only reach these ‘hidden services' if the user is using the Tor client and operating the Tor network.” Id. ¶ 9. “Even after connecting to the Tor network . . . a user must know the web address of the website in order to access the site.” Id. ¶ 10. Because Playpen was a hidden website on the Tor network, users had to take many affirmative steps to locate the site, making it “extremely unlikely that any user could simply stumble upon [Playpen] without understanding its purpose and content.” Id. ¶ 10.

         Even after locating Playpen, its content was only accessible to users who registered a username and then logged into the site. Upon arriving at the Playpen homepage, a user was prompted to either register an account or login using a pre-existing username and password. In order to register an account, users were required to accept Playpen's registration terms, which stated, among other things, that “the forum operators do NOT want you to enter a real [e-mail] address, ” “[users] should not post information [in their profile] that can be used to identify you, ” “it is impossible for the staff or the owners of this forum to confirm the true identity of users, ” “[t]his website is not able to see your IP, ” and “[f]or your own security when browsing . . . we also recomend [sic] that you turn off javascript and disable sending of the ‘referer' header.” Id. ¶ 13.

         Once logged into Playpen, users had complete access to all of Playpen's sections, forums, and sub-forums, where they could upload material and view material uploaded by others. The Warrant Application included a listing of the sections, forums, and sub-forums on Playpen, along with the corresponding number of topics and posts in each, which Special Agent Macfarlane observed upon accessing the site. Based on his review of Playpen's different forums, Special Agent Macfarlane concluded that the “the majority contained discussions, as well as numerous images that appeared to depict child pornography (‘CP') and child erotica of prepubescent females, males, and toddlers.” Id. ¶ 18. The FBI's review of Playpen revealed links to numerous depictions of what appeared to be child pornography. This included:

• An image of a prepubescent or early pubescent female being orally penetrated by the penis of a naked male. [ECF No.61-2 ¶ 18].
• A video of a prepubescent female, naked from the waist down, being anally penetrated by the penis of a naked adult male. Id. ¶ 18.
• Images focused on the nude genitals of a prepubescent female. Id. ¶ 23.
• A video of an adult male masturbating and ejaculating into the mouth of a nude prepubescent female. Id. ¶ 24.
• An image of two prepubescent females lying on a bed with their genitals exposed. Id. ¶ 25.
• An image of four females, including at least two prepubescent females, performing oral sex on one another. Id. ¶ 25.

         In addition, according to the Warrant Application, Playpen contained certain features, such as private messaging and image hosting, that facilitated the distribution of child pornography. Id. ¶¶ 22-25.

         b. The NIT Warrant

         In the Warrant Application, Special Agent Macfarlane stated that there was “probable cause to believe there exists evidence, fruits, and instrumentalities of criminal activity related to the sexual exploitation of children on computers that access [Playpen], in violation of 18 U.S.C. §§ 2251 and 2252A, ” and that the search authorized by the NIT Warrant would help the FBI to identify the computers used to log into Playpen, the locations of the computers, and the users of the computers. [ECF No. 61-2 ¶ 48].

         The NIT Warrant authorized the FBI to deploy the NIT onto any “activating” computer, defined as the computer “of any user or administrator who logs into [Playpen] by entering a username and password.” Id., Att. A. When deployed, the NIT would cause the user's computer to send the following information back to a government-controlled computer in the Eastern District of Virginia:

1) the computer's actual IP address and the date and time that the NIT determines what that IP address is;
2) a unique identifier generated by the NIT to distinguish data from that of other computers;
3) the type of operating system running on the computer;
4) information about whether the NIT has already been delivered to the ...

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