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United States v. Kahler

United States District Court, E.D. Michigan, Northern Division

February 14, 2017



          THOMAS L. LUDINGTON United States District Judge

         On February 20, 2015, a federal magistrate judge in the Eastern District of Virginia signed a warrant authorizing a FBI hacking operation designed to infiltrate a suspected child pornography website, named “Playpen.”[1] After breaching the website's security, the FBI recoded the website to request certain information from every computer that accessed the website. Because of that coding, accessing computers sent identifying information to the FBI. Using the data gathered, the FBI obtained a warrant from a magistrate judge for the Eastern District of Michigan to search Defendant Jason John Kahler's home and computer, located in Saginaw, Michigan. The items seized in that search served as the basis for the August 10, 2016, indictment which charges Kahler with possessing prepubescent child pornography. ECF No. 1. On December 21, 2016, Kahler filed a motion to suppress the fruits of the original warrant which authorized the hacking operation. ECF No. 21. On February 9, 2017, the parties submitted a stipulation to waive oral argument on the motion. ECF No. 29. Because the material facts are largely undisputed, the motion to suppress will be decided based on the arguments made in the briefing. For the reasons that follow, the motion to suppress will be denied.



         The following information is primarily drawn from the affidavits in support of the two applications for a search warrant. The “target website” which the FBI hacked was operated on the so-called “dark web.” The dark web is accessed by using certain software (Tor routing software) which routes communications through a series of computers and thus masks the user's IP address. The Tor software prevents websites from learning the user's physical location and prevents individuals attempting to monitor the user's internet usage from determining which sites have been visited. When, as was the case for Playpen, a website can be accessed only by users which are using Tor Software, it is considered part of the dark web. Further, the dark web is not indexed like the traditional internet. Accordingly, a Tor user could not simply use a search engine to discover and access Playpen.[2] Rather, Playpen could be accessed only by someone who had obtained its web address from another source, like a user familiar with the site or an online posting.

         According to the FBI's affidavit, Playpen “was a child pornography bulletin board and website dedicated to the advertisement and distribution of child pornography and the discussion of matters pertinent to the sexual abuse of children.” FBI Aff. at 12, ECF No. 21, Ex. A. Playpen became active in approximately August 2014. As of March 4, 2015, 117, 773 posts had been made by 214, 898 total members on Playpen. Between September 2014 and February 19, 2015, the front page of Playpen included an image of two scantily clothed girls. Both girls were posed salaciously and appeared to be prepubescent. The image also included the website's title and the following text: “No cross-board reposts, .7z preferred, encrypt filenames, include preview.” Gov. Resp., ECF No. 27, Ex. 1. According to the FBI Agent who prepared the affidavit: “Based on my training and experience, I know that: ‘no cross-board reposts' refers to a prohibition against material that is posted on other websites from being ‘re-posted' to [Playpen]; and ‘.7z' refers to a preferred method of compressing large files or sets of files for distribution.” FBI Aff. at 13.

         On February 19, 2015, the image on the front page was changed. The new image depicted one girl with no visible breast development. The girl was pictured wearing a short dress which exposed her upper thighs and thigh-high fishnet stockings. She was posed in a chair in a sexually suggestive manner. The new image also included instructions which forbade cross-posts, indicated a preference for .7z, and directed users to encrypt the file names and include a preview.

         Only registered users were allowed to enter Playpen. The front page included a hyperlink to the registration page. On that account registration page, users were directed to enter an “email address, ” but the page expressly instructed users to enter a fake email address. Users were also instructed that “‘for your security you should not post information here that can be used to identify you.'” Id. The registration page included further instructions regarding best practices for hiding the user's identity.

         According to the affidavit, Playpen included (among others) the following forums and subforums: “(a) Jailbait - Boy; (b) Jailbait - Girl; (c) Preteen - Boy; (d) Preteen - Girl; (e) Pre-teen Videos - Girl HC; (f) Pre-teen Videos - Boys HC; (g) Toddlers; and (h) Kinky Fetish - Scat.” Id. at 14. The FBI affiant indicated that, based on his training and experience, he knew “that ‘jailbait' refers to underage but post-pubescent minors; [and] the abbreviation ‘HC' means hardcore (i.e., depictions of penetrative sexually explicit conduct).” Id. Playpen included a forum where members could exchange usernames for a Tor-based instant messaging service which the FBI agent knew to be commonly used by individuals “engaged in the online sexual exploitation of children.” Id. Playpen included text-only sections where, according to the FBI affidavit, members discussed methods and tactics for the perpetuation of child sexual abuse. The website also included a private message function which users used to correspond more discretely. At least one post on the website revealed that private messages were being sent to discuss sexual abuse of children perpetrated by the users themselves.


         In December 2014, a foreign law enforcement agency informed the FBI that it suspected the target website's originating IP address was based in the United States. After further investigation, the FBI located the server hosting the target website, in North Carolina, and the residence of the website's administrator, located in Florida. The FBI seized the server, transported it to a government facility in Virginia, and assumed administrative control of Playpen. Rather than closing the website, the FBI chose to briefly operate Playpen in order to identify users of the website. Despite the FBI's control over Playpen, the Tor software through which members accessed the site prevented the FBI from obtaining identifying information from the users.

         To overcome the anonymity granted by the Tor software, the FBI sought a warrant authorizing a “Network Investigative Technique” (“NIT”). That technique works as follows: Typically, users view a webpage by communicating with the website. The user's computer requests access to a certain webpage, and the website then sends content to the user's computer. The user's computer receives that information and uses it to display the webpage. The NIT augments the instructions sent by the webpage and causes the user's computer to transmit identifying information from that computer, including the computer's IP address, operating system, operating system username, and network adapter address.

         A United States Magistrate Judge for the Eastern District of Virginia approved the FBI's search and seizure warrant, thus authorizing use of the NIT. After the FBI implemented the NIT, Defendant Kahler's computer made two postings on the target website on two different days. Based on the information the NIT revealed, the FBI sought and obtained a warrant to search Kahler's residence and computer. Pornographic images of minors were seized during the search. After that search, Kahler was charged with possessing prepubescent child pornography. This motion to suppress followed.


         The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

         Generally speaking, the requirement that searches be reasonable means law enforcement officials must obtain a judicially approved warrant beforehand. Riley v. California, 134 S.Ct. 2473, 2482 (2014). To satisfy the warrant requirement, a detached, neutral judge must find that there is probable cause that evidence of a crime will be found. United States v. Leon, 468 U.S. 897, 913- 15 (1984). “[G]reat deference” is given to a magistrate's determination that probable cause exists. Id. at 914. And there is a “presumption of validity with respect to the affidavit supporting the search warrant.” Franks v. Delaware, 438 U.S. 154, 171 (1978). However, if a defendant shows that the warrant affidavit included deliberate falsehoods or otherwise demonstrates a reckless disregard for the truth and the finding of probable cause was dependent on those falsehoods, the defendant is entitled to a hearing. Id.

         Even if the defendant shows that the Fourth Amendment was violated, “suppression is not an automatic consequence.” Herring v. United States, 555 U.S. 135, 137 (2009). The key inquiry is whether “the culpability of the police” and the need “to deter wrongful police conduct” justifies suppression. Id. Because the purpose of exclusion is deterrence, exclusion is not an individual right, even when the defendant's Fourth Amendment rights have been violated. Id. at 141. Exclusion is a last resort, not a “first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006). Even if exclusion would provide some marginal deterrence, that benefit must outweigh the costs of exclusion. Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998). Generally speaking, “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some ...

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