United States v. Werdene

883 F.3d 204 (2018)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Playpen was a global online forum that existed on the dark web. The site was dedicated to the advertisement and distribution of child pornography. The Playpen site operated on the anonymous 'The Onion Router' ('Tor') network. Tor prevents websites from registering a computer's actual IP address by sending user communications through a network of relay computers called 'nodes' up until those communications reach the website. Playpen's IP log-like that of other Tor websites-contained only the IP addresses of the exit nodes, rendering traditional IP identification techniques useless. The website had a substantial amount of users. More than 150,000 users collectively engaged in over 95,000 posts with over 9,000 forum topics related to child pornography. Playpen's administrator was a person residing in Florida, who was promptly arrested. The FBI then lawfully seized the server, moved it to a government facility in EDVA, and obtained a wiretap order to monitor communications on it. It then assumed administrative control of Playpen and allowed the website to operate while law enforcement officials tried to circumvent Tor and identify Playpen's users. The FBI used a single search warrant, issued in the Eastern District of Virginia to search the computers of thousands of Playpen users across the United States and the world using a form of government-created malware termed a 'Network Investigative Technique' (NIT). D, a citizen of Pennsylvania, was a Playpen user whose computer was compromised by the NIT. When someone accessed Playpen they downloaded NIT. Once downloaded, NIT searched the accessing computer for seven discrete pieces of identifying information: (1) an IP address; (2) a unique identifier to distinguish the data from that of other computers; (3) the type of operating system; (4) information about whether the NIT had already been delivered; (5) a Host Name; (6) an active operating system username; and (7) a Media Access Control address. NIT transmitted this information back to a government-controlled computer. The single warrant authorized the FBI to retrieve identifying information from computers all across the United States, and from all around the world. These computers were overwhelmingly located outside of EDVA. D was located through NIT and the FBI obtained a separate search warrant for D's home from a magistrate judge in EDPA, where agents seized one USB drive and one DVD containing child pornography. D was charged in the Eastern District of Pennsylvania (EDPA) with one count of possessing child pornography. D filed a motion to suppress the evidence and the court denied the suppression motion, holding that the NIT warrant violated the version of Fed. R. Crim. P. 41(b) then in effect but that the NIT itself did not constitute a search under the Fourth Amendment and that D was not prejudiced by the error. D took a plea where he reserved his right to appeal the suppression motion. D appealed. D claims that the issuance of the warrant violated his Fourth Amendment rights because it lacked particularity and was issued in violation of the jurisdictional requirements set forth in both Rule 41(b) and the Federal Magistrates Act.