United States v. Maurek

• Decision Date: 16 September 2015
• Docket Number: Case No. CR–15–129–D.
• Citation: 131 F.Supp.3d 1258
• Parties: UNITED STATES of America, Plaintiff, v. Gregory John MAUREK, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

131 F.Supp.3d 1258

UNITED STATES of America, Plaintiff,

v.Gregory John MAUREK, Defendant.

Case No. CR–15–129–D.

United States District Court, W.D. Oklahoma.

Signed Sept. 16, 2015.

Kerry Blackburn, U.S. Attorney's Office, Oklahoma City, OK, for Plaintiff.

ORDER

TIMOTHY D. DeGIUSTI

, District Judge.

Defendant Gregory Maurek has been indicted for receipt, distribution, and possession of child pornography. He moves to suppress all evidence acquired in the search of his computer [Doc. No. 15] on the grounds that (1) law enforcement's use of the "Torrential Downpour" software program to access files from his computer constituted a warrantless search; and (2) the warrant authorizing the search lacked probable cause because the supporting affidavit neither disclosed the fact that "Torrential Downpour" was only accessible to law enforcement, nor did it describe the software's technical or scientific reliability. The government filed its brief in opposition and an evidentiary hearing was held September 14, 2015. For the reasons stated below, Defendant's motion is denied.

BACKGROUND

As previously noted in this Court's Order of August 31, 2015 [Doc. No. 22], BitTorrent is a peer-to-peer ("P2P") file sharing network that is used to distribute large amounts of data over the Internet. BitTorrent is one of the most popular P2P networks used by individuals, as well as Ares, KaZaA, eDonkey, DirectConnect and Gnutella. Warner Bros. Records, Inc. v. Does 1–4, No. 2:07–cv–0424–TC, 2007 WL 1960602, at *1, n. 10 (D.Utah July 5, 2007)

. As one court explained, since its release over ten 10 years ago:

BitTorrent has allowed users to share files anonymously with other users. Instead of relying on a central server to distribute data directly to individual users, the BitTorrent protocol allows individual users to distribute data among themselves by exchanging pieces of the file with each other to eventually obtain a whole copy of the file. When using the BitTorrent protocol, every user simultaneously receives information from and transfers information to one another. In the BitTorrent vernacular, individual downloaders/distributors of a particular file are called "peers." The group of peers involved in downloading/distributing a particular file is called a "swarm." A server which stores a list of peers in a swarm is called a "tracker." A computer program that implements the BitTorrent protocol is called a "BitTorrent client."

First Time Videos, LLC v. Does 1–76, 276 F.R.D. 254, 255 (N.D.Ill.2011)

(citations omitted). Also prominent in the BitTorrent lexicon are "torrents," small files which describe the file being shared/distributed. Third Degree Films, Inc. v. Does 1–47, No. 12–cv–2391–WJM–MEH, 2012 WL 4005842, at *1 (D.Colo. Sep. 12, 2012). Torrents contain information such as how the file is divided and other information needed for its distribution (e.g., name, description, etc.). New Sensations, Inc. v. Does 1–426, No. 12–3800–JSC, 2012 WL 4675281 at *2 (N.D.Cal. Oct. 1, 2012). People may search for torrents for a specific work on the Internet; after a person finds a torrent, they may open the file with their BitTorrent client, and they then join the "swarm." Id. In turn, as each peer receives portions of the file being downloaded, that peer usually makes those portions available to other peers in the swarm. Id. Consequently, each peer in the swarm is simultaneously copying and distributing pieces of the file. Id. One swarm may last for months up to well over a year, depending on the popularity of the work, and people may leave and re-enter the same swarm at any time. Id.

The challenged search warrant was based on an affidavit in which Kari Newman, a Special Agent with Homeland Security Investigations, asserted that an investigation of the activities of an IP address registered to Defendant's residence established probable cause to believe someone at that address had received, possessed, and/or distributed child pornography over a P2P network. Agent Newman's affidavit described how P2P file sharing works, how a user can search for specific files and connect directly with another user's computer, and then download that file directly from the other user. She explained, in specific detail, the technological methods used by law enforcement to track down, identify, and arrest suspected users/distributors of child pornography on P2P networks. Lastly, Agent Newman explained how digital media devices were being used to store child pornography and the requisite skill and knowledge necessary to search these devices for evidence.

The affidavit recounted the investigative steps that were taken to identify Defendant's computer. Agent Newman attested that on March 18, 2015, Detective Chris Lamer of the Moore Police Department conducted an online undercover investigation and he was able to connect with a computer with IP address 68.97.10.183 and download numerous files. Based on Agent Newman's review of the files, as well as her training and experience, she determined that the files depicted children under the age of eighteen engaged in sexually explicit conduct and thus constituted "child pornography" as that term is defined in 18 U.S.C. § 2256(8)

.

At the evidentiary hearing, the Court heard testimony from Robert Erdely, who teaches courses in online investigations of child pornography and participated in the development of Torrential Downpour. He testified that Torrential Downpour is a law enforcement surveillance software that is used exclusively by law enforcement. It is used to track, investigate, and eventually arrest those sharing child pornography through various P2P sharing networks. Mr. Erdely testified that Torrential Downpour is "somewhat unique" in that (1) it is designed to target and download files from a single IP address, as opposed to multiple sources, and restrict downloads to come from only that particular address (this is called a "single source download"); (2) Torrential Downpour creates a detailed log of events for evidentiary purposes; and (3) Torrential Downpour does not share files. Mr. Erdely provided additional testimony on the overall nuances of Torrential Downpour and its role in the field of P2P file sharing. Of particular note, he stated Torrential Downpour's direct connection capabilities were no different from other commercially available versions of BitTorrent and it (Torrential Downpour) had no rate of error.

Through a subpoena, Detective Lamer discovered the street address corresponding with the aforementioned IP address at the date and time of the downloads. He then conducted a search of the Oklahoma Department of Motor Vehicles records and confirmed that Defendant had a valid Oklahoma Driver's License which listed him as residing at the same street address. The search warrant application was granted and upon execution of the warrant, agents seized and confiscated several digital storage devices from Defendant's residence. Child pornography, consisting of both videos and still images, was found on a computer.

STANDARD

The purpose of a suppression hearing is "to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments." United States v. Merritt, 695 F.2d 1263, 1269 (10th Cir.1982)

. "The proper inquiry is whether [the challenged action] violated the Fourth Amendment rights of [the] criminal defendant making the challenge." United States v. Allen, 235 F.3d 482, 489 (10th Cir.2000) (quoting United States v. Erwin, 875 F.2d 268, 270 (10th Cir.1989) (paraphrasing in original)). "The proponent of a motion to suppress has the burden of adducing facts at the suppression hearing indicating that his own rights were violated by the challenged search." United States v. Eckhart, 569 F.3d 1263, 1274 (10th Cir.2009) (quoting Allen, 235 F.3d at 489 ). The controlling burden of proof at a suppression hearing is proof by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974).

DISCUSSION¹

I. WHETHER USE OF THE "TORRENTIAL DOWNPOUR" SOFTWARE CONSTITUTED A WARRANTLESS SEARCH

The Fourth Amendment protects only reasonable expectations of privacy. Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)

(Harlan, J., concurring). Whether a defendant's Fourth Amendment rights were violated by a challenged search turns on the classic Fourth Amendment test: (1) whether the defendant manifested a subjective expectation of privacy in the area searched and (2) whether society is prepared to recognize that expectation as objectively reasonable. United States v. Barrows, 481 F.3d 1246, 1248 (10th Cir.2007). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351, 88 S.Ct. 507 (citation omitted); see also Smith v. Maryland, 442 U.S. 735, 743–44, 99 S.Ct. 2577, 2582, 61 L.Ed.2d 220 (1979) ("a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.").

The Tenth Circuit, and numerous other federal courts, including this Court, have uniformly held there is no reasonable expectation of privacy in files made available to the public through peer-to-peer file-sharing networks. See United States v. Brese, No. CR–08–52–D, 2008 WL 1376269, at *2 (W.D.Okla. Apr. 9, 2008)

("The Court finds that, notwithstanding any subjective expectation that Defendant may have had in the privacy of his computer, it was not reasonable for him to expect privacy in files that were accessible to anyone else with LimeWire (or compatible) software and an internet connection."); United States v. Perrine, 518 F.3d 1196, 1204–05 (10th Cir.2008) ("Furthermore, as [defendant] conceded, he had peer-to-peer software on his computer, which permitted anyone else on the internet to access at least certain folders in his computer. To the extent such access could expose...