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United States v. Sasiadek

United States District Court, W.D. New York

November 2, 2017

United States of America
v.
Daniel G. Sasiadek, Defendant.

          REPORT AND RECOMMENDATION

          Hon. Hugh B. Scott United States Magistrate Judge.

         I. INTRODUCTION

         Defendant Daniel Sasiadek (“Sasiadek”) allegedly visited an anonymous Internet site to view and to download child pornography. When Federal Bureau of Investigation (“FBI”) agents took over the Internet site, they wanted to find out who had been logging in and visiting the site. To accomplish that goal, FBI agents received permission from a Magistrate Judge in the Eastern District of Virginia to plant monitoring software on any computer that connected with the Internet site's server. The monitoring software would transmit information that would allow the agents to identify the user at the computer. In this way, FBI agents eventually discovered that Sasiadek was one of the Internet site's visitors. From there, FBI agents obtained a search warrant from this Court for Sasiadek's residence. Upon executing the search, the FBI agents found child pornography in Sasiadek's possession; the Government since has charged him accordingly.

         Sasiadek now has filed motions to suppress any evidence that traces back to the use of the monitoring software to discover his identity. (Dkt. No. 30 at 3; Dkt. No. 87.) Among other arguments, Sasiadek argues that the Magistrate Judge from the Eastern District of Virginia lacked authority to authorize the broad type of search that occurred here and any type of search outside of her own district. Sasiadek also disputes some of the information presented to that Magistrate Judge and raises policy concerns about how the FBI set itself up to capture information about visitors to the Internet site. The Government opposes suppression, arguing that the warrant in question was proper, that the effort required to reach the Internet site by itself supports probable cause, and that the FBI agents relied on the warrant in question in good faith.

         The Hon. Elizabeth A. Wolford has referred this case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 14.) The Court held oral argument on April 19 and October 12, 2017. For the reasons below, the Court respectfully recommends denying Sasiadek's motions.

         II. BACKGROUND

         This case concerns allegations that Sasiadek possessed child pornography on multiple electronic devices and attempted to use a minor to produce child pornography. The final events leading to Sasiadek's arrest are not in dispute and resemble other cases involving child pornography. In 2015, FBI agents identified an Internet Protocol (“IP”) address that connected with an Internet site named “Playpen.” Playpen was known to harbor child pornography; some content apparently would not meet the statutory criteria for child pornography, but the parties do not dispute that most content on the site would. Playpen was not accessible via the World Wide Web; as a “hidden service” or “dark web” site, Playpen was accessible only by way of a network known as The Onion Router, or “Tor.”[1] After contacting the Internet service provider Time Warner Cable, FBI agents confirmed that the IP address in question belonged to Sasiadek. Once FBI agents confirmed Sasiadek's IP address and residential address, they submitted an application to this Court for a search warrant for Sasiadek's residence. (Dkt. No. 42 at 8; see generally Case No. 15-MJ-2113.) The Court issued the search warrant on July 16, 2015.[2]

         Proceedings in this case began shortly after the Court issued its search warrant. FBI agents searched Sasiadek's residence and arrested Sasiadek on July 17, 2015, and the Government filed a pre-indictment complaint on the same day. (Dkt. No. 1.) The Court held an initial appearance on July 17, 2015 and a detention hearing on July 22, 2015. Sasiadek has been in continuous custody since his arrest. The most current accusatory instrument is the superseding indictment that the Government filed on May 5, 2016. (Dkt. No. 19.) The superseding indictment contains eight counts plus a forfeiture notice. In Count One, the Government accuses Sasiadek of production of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e). In Counts Two through Eight, the Government accuses Sasiadek of possession of child pornography on different electronic media, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). The forfeiture notice pertains to the various electronic media seized from Sasiadek's house that allegedly contain child pornography.

         The above details are not unusual for a case like Sasiadek's. What makes this case unusual is how FBI agents obtained Sasiadek's IP address in the first place. Playpen, being a hidden service within the Tor network, did not collect or store the IP addresses of its visitors. Playpen also encouraged visitors to log in anonymously using fictitious names and email addresses. (See, e.g., Dkt. No. 42 at 69 (reposting Playpen disclaimer to users warning them not to enter a real email address).) Consequently, when FBI agents took over Playpen in February 2015, [3] they had no way of knowing who was visiting the site, how frequently anyone visited the site, or what visitors did once they entered the site. To defeat Playpen's anonymity, FBI agents employed a tactic called a Network Investigative Technique (“NIT”). The NIT consisted of software-Sasiadek and at least some courts have used the pejorative term malware-that bypassed any defenses on a Playpen visitor's computer and installed itself surreptitiously. The NIT installed itself as soon a visitor logged in and reached the landing page; installation did not require any confirmed downloads of child pornography. No computer could pick up the NIT without first visiting the Playpen site. Once installed, the NIT executed one function: obtain the IP address and other identifying information for the computer that contacted the Playpen site, and transmit that information to the FBI.

         FBI agents obtained permission to set up and to execute the NIT from a single Magistrate Judge in the Eastern District of Virginia. In the warrant application, the agents described the place to be searched as a combination of the Playpen server, “located at a government facility in the Eastern District of Virginia” (Dkt. No. 42 at 54), and the computers “of any user or administrator who logs into [Playpen] by entering a username and password.” (Id.) The agents described the information that they sought through the NIT, including any given computer's IP address, operating system, host name, operating system username, and media access control (“MAC”) address, along with a unique identifier that the software itself would generate. (Id. at 55.) The agents described Playpen as “dedicated to the advertisement and distribution of child pornography, the discussion of matters pertinent to child sexual abuse, including methods and tactics offenders use to abuse children, as well as methods and tactics offenders use to avoid law enforcement detection while perpetrating online child sexual exploitation crimes such as those described in paragraph 4 of this affidavit.” (Id. at 65.) Another section of the application describes playpen as a site that “appeared to be a message board website whose primary purpose is the advertisement and distribution of child pornography.” (Id. at 68.) With respect to the NIT software itself, the FBI agents describe the software as “additional computer instructions” that would “cause” a computer “to transmit certain information to a computer controlled by or known to the government.” (Id. at 79.) The agents did not describe how the “instructions” would download surreptitiously and would bypass all antivirus and malware defenses on the computer. The agents did, however, put the Magistrate Judge on notice that the NIT would operate on affected computers “wherever located.” (Id. at 84.) The Magistrate Judge approved the application and issued the search warrant on February 20, 2015.

         On September 28, 2016, Sasiadek filed a motion to suppress all evidence obtained with the help of the NIT. (Dkt. No. 30 at 3; Dkt. No. 87.) Sasiadek seeks suppression for several reasons. Sasiadek argues that the Magistrate Judge in the Eastern District of Virginia wound up issuing a warrant that authorized a search outside of her district, thereby violating the territorial limits of Rule 41(b) of the Federal Rules of Criminal Procedure. A similar argument advanced by Sasiadek is that the NIT warrant did not authorize the search of his computer in this District. The NIT warrant additionally “did not (because it could not) specify who these users were or where their computers could be located. The warrant therefore failed to particularly describe the computers to be searched in violation of the Fourth Amendment.” (Id.) Sasiadek also challenges the probable cause finding behind the NIT warrant and the information that FBI agents provided to the Magistrate Judge. The agent who applied for the NIT warrant told the Magistrate Judge “that ‘the entirety' of Playpen is ‘dedicated to child pornography, ' and described the site as a ‘website whose primary purpose is the advertisement and distribution of child pornography.'” (Dkt. No. 40 at 3; see also Dkt. No. 42 at 75.) Sasiadek disputes this characterization as intentionally misleading and counters that the website had a mix of legal and illegal content that would not be obvious from the landing page within the site that would trigger installation of the NIT. (See also Id. at 9 (“Because the NIT warrant application contained no specific information about the site's visitors and the application did not include an expert ‘collector profile, ' probable cause depended on the contents of the home page and whether it was likely that anyone who saw that page would know that its contents were illegal before proceeding to actually take a look.”) (citation omitted); Dkt. No. 42 at 70-72 (listing of landing page contents).) On a broader policy level, Sasiadek takes issue with how, in his view, the FBI essentially became a child pornography distributor for two weeks to defeat Playpen's anonymity:

To ensnare its targets, the FBI maintained and operated Playpen from February 20, 2015 until at least March 4, 2015. During this time the FBI ran Playpen just as the prior management, allowing new users to sign up, members to post child pornography, and any registered visitor to view and download illegal materials. It made no effort to block or limit the uploading, downloading, viewing, or redistribution of countless illegal pictures and videos. In fact, site traffic actually increased while Playpen was under the FBI's stewardship. As of February 20, 2015 the site had 158, 094 members and enjoyed approximately 11, 000 weekly visitors. According to government information, approximately 56, 000 new members joined the site after the FBI took it over and about 100, 000 users visited the site during the two-week period that the FBI operated it, a dramatic improvement over the site's performance under pre-FBI management.

(Dkt. No. 40 at 7.)

         The Government opposes Sasiadek's motion in all respects. The Government begins with a factual dispute over Sasiadek's insinuation that the FBI effectively became a child pornography distributor in 2015. The Government specifically disputes Sasiadek's ...


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