United States v. Bode
| Decision Date | 21 August 2013 |
| Docket Number | Criminal Case No. ELH-12-158 |
| Parties | UNITED STATES OF AMERICA v. LAURENCE JOHN BODE |
| Court | U.S. District Court — District of Maryland |
Defendant Laurence John Bode is charged by Indictment (ECF 1) with five counts of child pornography offenses, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4).1 The charges stem from the government's investigation of the users of Free6.com, a website that hosted legal adult pornography and sexual content and also provided an online instant messaging or "chat" functionality. The investigation was spawned by a federal agent's suspicion that some of Free6.com's users were exchanging child pornography by way of the website's chat service.
During the investigation, Free6.com's administrator gave the agent administrative access privileges to the website, which included the ability to view the content of chat messages sent between individual users of the website. In the chat messages, the agent observed two alleged images of child pornography, among other things, which had been transmitted by a user in January 2010. Further investigation provided probable cause to believe that this user was Mr. Bode or a member of his household. On this basis, the government obtained a search warrant for Mr. Bode's home and computers. The search of the defendant's home was conducted onOctober 8, 2010, pursuant to a warrant. At that time, Bode's computer was seized, and a subsequent forensic examination of the computer revealed additional digital files containing alleged child pornography.
Following his indictment in March 2012, Bode filed several pretrial motions.2 At issue here is Bode's Motion to Suppress Tangible and Derivative Evidence ("Motion") (ECF 32), in which Bode argues that the agent's perusal of the chat messages on Free6.com constituted an unlawful search or seizure, in violation of the Fourth Amendment; the Wiretap Act, 18 U.S.C. §§ 2510 et seq.; and/or the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. Thus, defendant maintains that all of the evidence derived in the government's investigation is tainted by the unlawful search and should be suppressed.
The Motion has been fully briefed, and evidence and argument were presented on it at a hearing on May 7 and 8, 2013.3 Three witnesses testified at the hearing: Special Agents Neil Burdick and John Van Wie, both of the Department of Homeland Security, and Nicola Thyen, defendant's spouse. Transcripts of the testimony have since been prepared. See Tr. of 5/7/13(ECF 94); Tr. of 5/8/13 (ECF 95).4 For the reasons that follow, I will deny the Motion.
I find the following facts, derived from the evidence submitted at the hearing, as well as the undisputed portions of the parties' submissions. See United States v. Castellanos, 716 F.3d 828, 847 (4th Cir. 2013) () (quoting United States v. Helms, 703 F.2d 759, 763-64 (4th Cir. 1983).
In 2008, Special Agent Neil Burdick of the Department of Homeland Security, assigned to Immigration and Customs Enforcement, attended the 2008 Internet Crimes Against Children Conference, where he was informed that the chat service on Free6.com was used by some users of the website to download and distribute child pornography. Accordingly, in late September or early October of 2008, SA Burdick began to investigate the website from his office in California, where he was part of the Child Exploitation Investigations Group.
In order to utilize Free6.com's chat service at that time, a visitor to the website had to click an icon labeled "chat" on the main Free6.com home page. This would take the user to a page titled "Chat log in," where the user was prompted to fill out a form asking the user to choose a screen name and to indicate the user's gender, and then to click a button labeled "Log In." The following text appeared to the right of the login form:
The parties refer to the text of the "Free6.com Chat rules," quoted above, as a "banner." To the right of this "banner" were instructions for "How to report users," which gave users of the chat service the option to report other users who violated the rules. The instructions indicated that the reporting user would have three options to indicate the nature of the infringing content that an offending user had posted: (1) "Child pornography / underage"; (2) "Advertising or spamming"; or (3) "Harassing or bad behavior."
An image of this page of the Free6.com website, as it appeared when SA Burdick began his investigation, is shown below.5
Image materials not available for display.
Notably, although the login page asked the user for "Your Name," Free6.com did not require users to enter their true identity or to register in any way with the website. Rather, the user would enter a screen name, which might—or might not—represent the user's true identity. Moreover, the screen name was not tied to a permanent account; it was only valid for the user's current chat session, and there was no password requirement. So, a user could use a different screen name each time he or she logged into the chat service on the website.
In any event, once a user clicked on the "Log In" button, the user would be presented with the user interface for the chat service. However, before the user could actually use the chat service, the user was required to click a button labeled "ACCEPT," to indicate acceptance of the contents of a second "banner" that appeared above the user interface. At the time SA Burdick began his investigation, the second banner contained a non-pornographic image of a young girl staring sadly into the camera, and the following text:
An image of the user interface of the Free6.com chat service, including the second banner superimposed over it, is shown below.
Image materials not available for display.
Once a user clicked the "ACCEPT" button, he or she would be able to use the chat service. An image demonstrating the user interface for the chat service is shown below.
Image materials not available for display.
The chat service allowed users to send real-time messages, consisting of text or images, to virtual "chat rooms," in which any number of users—members of the public—might be present, as well as to send "private" chat messages directly to individual users. In essence, the chat service functioned as a web-based instant messaging service. Unlike an email account, an online bulletin board, or the comments section of a blog, there was no way for a user in a public chat room to see messages that had been posted when the user was not logged in. Nor could a user in a public or private chat room access messages he or she sent or received during a previous session.
According to SA Burdick, he personally observed several people using the chat service on Free6.com to post child pornography. Tr. of 5/7/13 at 4. This prompted Burdick to contact the website's administrator. Id. SA Burdick initially served a subpoena on a company called Domains by Proxy in order to obtain the identity and contact information for the owner or administrator of Free6.com. Id. at 5-6.6 Based on the response to the subpoena, SA Burdick learned that Free6.com was "run in Sweden." Id. at 7. Therefore, SA Burdick did not send asubpoena to Free6.com, because "they're a foreign company and [he had] no authority to send a subpoena to a company in Sweden." Id. Rather, he "[d]ecided it would be easier to e-mail them and see if they would cooperate." Id.
Accordingly, on October 6, 2008, SA Burdick sent an email to the administrator of Free6.com (via an anonymous email address provided by Domains by Proxy). He wrote, ECF 33-3 at 1:
I am looking for contact information for the person who monitors the chat portion of your website for child pornography. Your website claims that it reports child sexual abuse images to authorities. I have seen numerous postings of child pornography and would like to receive reports about the people in the United States who are doing this. I have no interest in investigating your website, only the people in the United States that are posting these images.
A few days later, Free6.com's administrator, who identified himself to Burdick only as "Stefan,"7 responded via email, stating, ECF 33-3 at 3:
SA Burdick replied: ECF 33-3 at 5. On October 24,2008, Stefan sent an email to...
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