United States v. Weber
| Decision Date | 22 April 2022 |
| Docket Number | CR 21-28-M-DLC |
| Citation | 599 F.Supp.3d 1025 |
| Parties | UNITED STATES of America, Plaintiff, v. Taurean Jerome WEBER, Defendant. |
| Court | U.S. District Court — District of Montana |
Cyndee L. Peterson, U.S. Attorney's Office, Missoula, MT, for Plaintiff.
Peter F. Lacny, Datsopoulos MacDonald & Lind, Missoula, MT, for Defendant.
Before the Court is Defendant Taurean Jerome Weber's motion to suppress and motion in limine. (Docs. 44; 46.) Mr. Weber's suppression motion argues all evidence in this case should be excluded because it is the fruit an unconstitutional search, wherein law enforcement viewed video and image files pulled from Mr. Weber's Instagram accounts and included with several CyberTips. Mr. Weber's motion in limine seeks approval of an Old Chief type stipulation that the media files at issue in this case meet the federal definition of child pornography. For the reasons stated herein, both motions will be denied.
Instagram is social media company through which users register for accounts capable of uploading, sharing, and viewing videos and images both publicly and privately. To obtain an account, one must, among other things, provide some personal information, select a username, and agree to terms of service.
It appears Mr. Weber maintained several Instagram accounts. When creating these accounts, Mr. Weber agreed to certain terms of service, which provided in relevant part that:
We also have teams and systems that work to combat abuse and violations of our Terms and policies, as well as harmful and deceptive behavior. We use all the information we have-including your information-to try to keep our platform secure. We also may share information about misuse or harmful content with other Facebook Companies or law enforcement
(Doc. 52 at 1.) These terms of service also stated that an Instagram account cannot be used for an unlawful purpose and that it has the right to remove any shared content if it violates the terms of service. (Id. at 3–4.)
Instagram suspected at least some of Mr. Weber's accounts housed apparent child pornography and shut those accounts down. Mr. Weber and Instagram exchanged communications regarding these accounts following their deactivation. To understand what happened next, one must understand the legal framework under which electronic service providers report suspected child pornography to the National Center for Missing and Exploited Children ("NCMEC"). Under federal law, "electronic communication service providers" need not actively search for child pornography on their platforms, but they must report it when they find it. See 18 U.S.C. § 2258A(f)(3). Such reports must be made to NCMEC, and, important for this case, must include the "visual depiction of apparent child pornography or other content relating to the incident such report is regarding." Id. § 2258A(b)(4).
Once a report is received, federal law requires NCMEC to "forward[ ] what is known as a CyberTip to the appropriate law enforcement agency for possible investigation." United States v. Wilson , 13 F.4th 961, 964 (9th Cir. 2021) ; see also 18 U.S.C. § 2258A(c). This CyberTip must include the content of the underlying report, which, as noted above, will contain the "visual depiction of apparent child pornography" forming the basis of the report. 18 U.S.C. § 2258A(b)(4), (c). The receiving law enforcement agency will then presumably launch an investigation that, at some point, will involve reviewing the media files of suspected child pornography included along with the report.
In this case, Instagram made five reports to NCMEC between late 2019 and early 2020 regarding suspected child pornography found on the deactivated accounts created by Mr. Weber. NCMEC, in turn, sent five CyberTips to Montana law enforcement. The first CyberTip was based on information supplied to NCMEC by Instagram on October 25, 2019. (See generally Doc. 50-1 at 1–8.) According to the CyberTip, Instagram reported that an account with the username "lordgonnor" and email address lordgonnor@gmail.com contained suspected child pornography. (Id. at 3.) The account's IP address was associated with geolocation data in the Missoula, Montana area. (Id. at 5.) This report and corresponding CyberTip contained one video file and one image file, both of which Instagram indicated it had viewed. (Id. at 3–4.) NCMEC also indicated one of its staff members had viewed the files. (Id. at 7.) CyberTip 1 was sent to Gary Seder, then-commander of Montana's Internet Crimes Against Children task force on December 6, 2019. (Id. at 6.)
The second CyberTip was based on information supplied to NCMEC by Instagram on November 29, 2019. (See generally id. at 9–15.) According to the CyberTip, Instagram reported that an account with the username "ggshoutouts2020" and email address lordgonnor+insta@gmail.com contained suspected child pornography. (Id. at 11.) The account's IP address was associated with geolocation data in the Missoula, Montana area. (Id. at 13.) The report and corresponding CyberTip contained two video files and one image file, with Instagram indicating it had viewed all of these files. (Id. at 11–12.) NCMEC also indicated one of its staff members had viewed the files. (Id. at 14.) CyberTip 2 was transmitted to Gary Seder on December 6, 2019. (Id. at 15.)
The third CyberTip was based on information provided to NCMEC by Instagram on November 4, 2019. (See generally id. at 16–22.) According to the CyberTip, Instagram reported that an account with the username "_teenshoutouts2020" and email address lordgonnor+insta2@gmail.com contained suspected child pornography. (Id. at 18.) The account's IP address was associated with geolocation data in the Missoula, Montana area. (Id. at 20.) The report and corresponding CyberTip contained one video file and one image file, with Instagram indicating it had viewed both of these files. (Id. at 18–19.) NCMEC also indicated one of its staff members had viewed the files. (Id. at 21.) CyberTip 3 was transmitted to Gary Seder on December 6, 2019. (Id. at 22.)
The fourth CyberTip was based on information provided to NCMEC by Instagram on December 9, 2019. (See generally id. at 23–30.) According to the CyberTip, Instagram reported that an account with the username and email address lordgonnor+fxck.instagram@gmail.com contained suspected child pornography. (Id. at 25.) The account's IP address was associated with geolocation data in the Missoula, Montana area. (Id. at 27.) The report and corresponding CyberTip contained one video file and one image file, with Instagram indicating it had viewed both of these files. (Id. at 25–26.) NCMEC also indicated one of its staff members had viewed the files. (Id. at 28.) CyberTip 4 was transmitted to Gary Seder on January 22, 2020. (Id. at 30.)
The fifth CyberTip was based on information provided to NCMEC by Instagram on May 23, 2020. (See generally Doc. 50-2 at 1–11.) According to the CyberTip, Instagram reported that an account with the username and email address lordgonnor+fanpage@gmail.com contained suspected child pornography. (Id. at 3.) The account's IP address was associated with geolocation data in the Missoula, Montana area. (Id. at 7.) The report and corresponding CyberTip contained two image files, but, importantly, this time Instagram did not indicate whether it had viewed these files. (Id. at 4–5.) NCMEC made clear it had also not viewed the files. (Id. at 8–9.) CyberTip 5 was transmitted to Gary Seder on June 24, 2020. (Id. at 11.)
With these CyberTips in hand, law enforcement began to investigate. In this case, Gary Seder sent some of the CyberTips off for additional FBI analysis, but they all eventually made their way to Katherine Hall, a detective with the Missoula Police Department. Critically, upon receiving the CyberTips Detective Hall, without a warrant, personally viewed the media files transmitted along with them. Detective Hall did not get a warrant because not only did four of the CyberTips specifically indicate Instagram had viewed the files, but her training had taught her that Instagram, unlike some other electronic service providers, had a policy of viewing images of suspected child pornography before sending them off to NCMEC. Detective Hall's investigation also revealed the precise residential address for the IP address associated with the reported Instagram accounts and the people that lived there. This included Mr. Weber. Detective Hall began applying for search warrants.
Between July 27, 2020 and February 17, 2021, numerous search warrants were issued and served on Mr. Weber's house, personal effects, vehicles, electronic accounts, and electronic devices. (See generally Docs. 50-3; 50-4; 50-5; 50-6.) Eventually, on July 28, 2021, Mr. Weber was indicted on five counts of transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1) (Counts I–V) and five counts of distribution and receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Counts VI–X). (Doc. 2.) On December 29, 2021, upon the United States motion, this Court dismissed Counts V and IX. (Doc. 49.) These counts related to the fifth CyberTip.
During pretrial proceedings, Mr. Weber sought information regarding how Instagram viewed the image and video files prior to transmitting them to NCMEC. To this end, the Court issued a subpoena directing Instagram to identify the employee who viewed the media files at issue or the process by which such media was viewed. (Docs. 38-1.) Instagram did not respond, and it remains unknown whether when Instagram indicated it had "viewed" the files at issue, it meant an actual human being looked at the files before they were submitted to NCMEC. Seizing on this knowledge gap, Mr. Weber seeks the suppression of every piece of evidence in this case on the basis that it is the fruit of an unconstitutional search—mainly, Detective Hall's...
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