United States v. Allain

213 F. Supp. 3d 236, 2016 U.S. Dist. LEXIS 134605, 2016 WL 5660452
CourtDistrict Court, D. Massachusetts
DecidedSeptember 29, 2016
DocketCriminal No. 15-cr-10251
StatusPublished
Cited by8 cases

This text of 213 F. Supp. 3d 236 (United States v. Allain) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Allain, 213 F. Supp. 3d 236, 2016 U.S. Dist. LEXIS 134605, 2016 WL 5660452 (D. Mass. 2016).

Opinion

MEMORANDUM AND ORDER

BURROUGHS, UNITED STATES 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, 207 F.Supp.3d 732, 2016 WL 4926438 (W.D. Ky. Sept. 14, 2016); United States v. Henderson, No. 15-[240]*240CR-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, 186 F.Supp.3d 26, 2016 WL 2596010 (D. Mass. May 5, 2016); United States v. Croghan, No. 1:15-CR-48, 209 F.Supp.3d 1080, 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 ad-dendums 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 applica[241]*241tion 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 álgor-ithm-generated characters followed by the suffix “.onion.” Thus, at the time the Warrant Application was submitted, the web address for Playpen was upf45jv3bzi-uctml.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.” |d. ¶ 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.

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Cite This Page — Counsel Stack

Bluebook (online)
213 F. Supp. 3d 236, 2016 U.S. Dist. LEXIS 134605, 2016 WL 5660452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-allain-mad-2016.