United States v. Pawlak

237 F. Supp. 3d 460, 2017 WL 661371, 2017 U.S. Dist. LEXIS 23100
CourtDistrict Court, N.D. Texas
DecidedFebruary 17, 2017
DocketCriminal No. 3:16-CR-306-D(1)
StatusPublished
Cited by1 cases

This text of 237 F. Supp. 3d 460 (United States v. Pawlak) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pawlak, 237 F. Supp. 3d 460, 2017 WL 661371, 2017 U.S. Dist. LEXIS 23100 (N.D. Tex. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, UNITED STATES DISTRICT JUDGE

The instant motions to suppress and dismiss the indictment challenge the Federal Bureau of Investigation’s (“FBI’s”) seizure of a computer server that hosted a child pornography website called “Playpen,” and the FBI’s ensuing operation of the website on a government server.- Following a hearing, and for the reasons, that follow, the court denies defendant Daryl Glenn Paw-lak’s (“Pawlak’s”) motions.1

I

The facts of this case that are material to the- court’s decision are undisputed.2 In early 2015, acting, on a tip from a foreign law enforcement agency, the FBI located and seized a computer server that contained a child pornography website called Playpen. Playpen existed as a hidden website on the Tor Network,3 also known as the dark web. Through sophisticated encryption, the Tor Network anonymizes and actively conceals identifying information about website users, including a user’s true Internet Protocol (“IP”) address. To access Playpen, it was necessary for users to know the website’s address on the Tor Network. Users could not, for example, stumble upon Playpen while browsing the Internet. Once on the Playpen website, users logged in with dedicated usernames and passwords. Playpen offered users various forums for different child pornography [464]*464topics, including “Incest” and “Toddlers.” Inside each forum were discussion posts, images, and videos related to the particular topic. . .

Because the Tor Network anonymizes its users, the FBI could not uncover who was operating or accessing the Playpen website through normal investigative techniques. The FBI devised a plan to investigate Playpen’s users, who would normally be untraceable. The plan called for the FBI to copy the Playpen- server and continue to operate the Playpen website on the FBI server. While operating the website, the FBI would use a network investí-, gative technique (“NIT”) that allowed it -to retrieve information from the computers of the persons who logged in to the Playpen website. The NIT—computer code developed by the. FBI—would be attached to various files uploaded to Playpen. When the website user downloaded a file, the NIT would force the user’s computer to send to the FBI the user’s actual IP address and other ■ identifying information. With the actual IP address, the FBI could identify and locate the user.

Acting according to the plan, the FBI copied the Playpen server and brought it to a government facility located in the Eastern District of Virginia. On February 20, 2015 the FBI applied for and obtained from a United States Magistrate Judge of the Eastern District of Virginia a search warrant (the “NIT Warrant”) authorizing the FBI to deploy the NIT program for a period of up to 30 days. The FBI also obtained from a United States District Judge a Title III order authorizing the FBI to intercept private messages and private chats in real time on the Playpen website. But the government acknowledges that Pawlak’s username did not engage in privaté messages or chats during the period of time the FBI monitored communications under the Title III order.

On or about March 4, 2015, Pawlak accessed the Internet from his residence using a laptop computer that his employer, Sigma Cubed, had issued.. . Using the Tor Network, he logged in to the Playpen website and clicked- on a post entitled, “My daughter 5yo-photo .2015.” As the content from this post downloaded -onto the laptop, the NIT computer code was sent automatically. The NIT relayed Pawlak’s IP address and other information back to the FBI in the Eastern District of Virginia.

Based on this information, the FBI issued a subpoena to AT & T, the Internet service provider connected with Pawlak’s IP address, and learned that Pawlak’s wife was the account holder associated with the address. The FBI obtained a warrant to search Pawlak’s residence, but it did not find computers containing child pornography. While executing the warrant, agents called Pawlak’s wife’s cell phone, and Paw-lak answered. He volunteered the details of how he accessed and viewed child pornography. Thereafter, the FBI contacted Pawlak’s current employer, Independence Oil Field Chemicals, and his previous employer, Sigma Cubed, to request access to the. work computers issued, to him. The companies granted permission, and upon searching these computers, the FBI found hundreds of images of child pornography.

The grand jury later indicted Pawlak for the offenses of receipt of child pornography, in violation óf 18 U.S.C. § 2252A(a)(2)(A), and possession of child pornography involving a prepubescent minor, in violation of' ’ 18 U.S.C. § 2252A(a)(5)(B). Pawlak moves to suppress all information obtained by the NIT that was authorized pursuant to the application for Title III interception on or about February 20, 2015 in the Eastern District of Virginia and the application for the search of computers that access the Playpen website on or about February 20, [465]*4652015. He also moves to dismiss the indictment. The government opposes both motions.

II

The court first considers Pawlak’s motion to suppress evidence that he. alleges was collected in violation of the Fourth Amendment.4

The general rule under the-Fourth Amendment is that searches of private property are reasonable if conducted pursuant to a valid warrant issued' upon probable cause. See, e.g., Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). “A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (citing United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001)). “The exclusionary rule prohibits introduction at' trial of evidence obtained As the result of ah illegal search or seizure.” United States v. Runyan, 275 F.3d 449, 466 (5th Cir. 2001). The exclusionary rule also “encompass[es] evidence that is the indirect product or ‘fruit’ of unlawful police conduct.” Id. (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

III

The court considers first the legality of- the search. Pawlak contends that the search was. unlawful because .it exceeded the scope of the NIT Warrant. Pawlak maintains that the warrant “states that the property to be seized—the data including the identifiers from the Activating Computers—was ... located .in the Eastern District of Virginia,” and authorized a search only of “one FBI computer server located in the Eastern District of Virginia hosting child pornography.” D. Br. 13-14. This is a mischaracterization of the NIT Warrant.

The NIT Warrant includes a standard court form that incorporates Attachments A and B.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Taylor
250 F. Supp. 3d 1215 (N.D. Alabama, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
237 F. Supp. 3d 460, 2017 WL 661371, 2017 U.S. Dist. LEXIS 23100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pawlak-txnd-2017.