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United States v. Blouin

United States District Court, W.D. Washington, Seattle

August 14, 2017



          Thomas S. Zilly United States District Judge

         THIS MATTER came before the Court on four motions brought by defendant Douglas Blouin: (i) a motion to suppress, docket no. 61; (ii) a motion for a Franks hearing, docket no. 63; (iii) a motion to dismiss, suppress, or for a jury instruction regarding spoliation, docket no. 59; and (iv) a motion to exclude pursuant to Daubert, docket no. 62. By Minute Order entered July 25, 2017, docket no. 90, and by oral ruling issued on July 27, 2017, see Minutes (docket no. 91); Tr. at 96:10-99:24 (docket no. 99), the Court denied all of these motions, with the exception of the alternative request for a jury instruction regarding spoliation, which was deferred to trial. This Order incorporates by reference the Court's oral ruling and further explains the Court's reasoning.


         At issue in each of defendant's motions is the Government's deployment of software known as RoundUp eMule. Using RoundUp eMule, Homeland Security Investigations (“HSI”) Special Agent Toby Ledgerwood allegedly downloaded twelve videos and two images of child pornography from a computer with an Internet Protocol (“IP”) address associated with defendant. After a search warrant was obtained, a Dell desktop computer was seized from defendant's home. A forensic examination of the computer revealed that it had been “thoroughly scrubbed” just days before the search, and only one image of child pornography was found, which was not among the materials previously downloaded by Ledgerwood.[1]

         RoundUp eMule was developed by Brian Lynn, a Senior Programmer in the College of Information and Computer Sciences at the University of Massachusetts, Amherst, with funding from the Department of Justice. See Lynn Decl. at ¶¶ 1-2 (docket no. 79). It is a modified version of the publicly-available (“open source”) peer-to-peer (“p2p”) file-sharing program known as eMule. See id. at ¶ 4. RoundUp eMule was first released in March 2011. Id. at ¶ 6. Lynn testified at the hearing on July 27, 2017, that sixteen (16) different versions of RoundUp eMule have been created, but not all of them were released. Version 1.54, which was used by Ledgerwood in this matter, was released in January 2015. Id. It was not, unlike Version 1.38, subjected to validation testing, see Pla.'s Hrg. Ex. 2 (Report by The MITRE Corporation), but Lynn believes that none of the intervening changes would have altered the functionality of RoundUp eMule, see Lynn Decl. at ¶ 12.

         Like eMule and another open-source program known as Shareaza, RoundUp eMule adheres to the protocol of the eDonkey/KAD p2p file-sharing network, and enables downloading of only those files being shared by eDonkey/KAD clients. See Id. at ¶¶ 7 & 9; see also Erdely Decl. at ¶¶ 4-5 (docket no. 38-1). Lynn has indicated under oath that he did not include any code in RoundUp eMule that would facilitate involuntary sharing of files. Lynn Decl. at ¶ 9; see also Erdely Decl. at ¶¶ 12, 17, 21, & 23. Lynn has also testified via declaration, as well as during the hearing on July 27, 2017, that, unlike eMule and Shareaza, RoundUp eMule downloads files from a single source to ensure that they come from one particular eDonkey/KAD network user. See Lynn Decl. at ¶ 10; see also Erdely Decl. at ¶¶ 6 & 16. In February 2014, Lynn released another program known as the RoundUp eMule Scheduler, which allows law enforcement to automate the process of downloading from single sources based on the geographic areas of IP addresses. Lynn Decl. at ¶ 13. In connection with his investigation in this matter, Ledgerwood also used the RoundUp eMule Scheduler.


         A. Motion to Suppress

         Defendant essentially contends that law enforcement should have obtained a search warrant before deploying RoundUp eMule to download items from his computer and to obtain his IP address. The threshold question is whether the use of RoundUp eMule constituted a search. In support of his argument that a warrant was required, defendant cites a law review article for the proposition that United States v. Jones, 565 U.S. 400 (2012), adopted a “mosaic theory” of the Fourth Amendment, pursuant to which the collective activities of law enforcement personnel could constitute a search even though no individual step viewed in isolation would support such conclusion. See Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 Mich. L. Rev. 311 (2012). The premise of Kerr's article, however, is faulty. Neither the majority opinion nor Justice Sotomayor's concurrence endorse such “mosaic theory.”

         In Jones, which concerned the installation of a global-positioning-system (“GPS”) tracking device on a vehicle registered to the defendant's wife, the Supreme Court clarified that the “reasonable expectation of privacy” test articulated in Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring), merely augmented, see 565 U.S. at 409, and “did not displace or diminish” the “trespassory test” that preceded it, id. at 414 (Sotomayor, J., concurring). Using the trespassory test, the Supreme Court concluded that, although the vehicle had been in a public place when the GPS device was attached to its undercarriage, the Government had encroached on a protected area (the vehicle itself) and a search warrant was therefore required. Id. at 410-11; see also id. at 414 (Sotomayor, J., concurring) (“the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs”). Contrary to Kerr's view, Justice Sotomayor's concurrence did not adopt a “mosaic” standard; at most, it acknowledged that the current Fourth Amendment standards, which “treat secrecy as a prerequisite for privacy, ” are “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Id. at 417-18 (Sotomayor, J., concurring). To the extent defendant contends that the operation of RoundUp eMule amounts to a search under some “mosaic theory, ” his argument lacks jurisprudential support.

         Defendant also relies on United States v. Darby, 190 F.Supp.3d 520 (E.D. Va. 2016), in which the deployment of a Network Investigative Technique (“NIT”) was found to constitute a search. The NIT used in Darby was sent by Government agents to computers that logged onto a particular website (Playpen) offering child pornography, and instructed such computers to transmit back certain information, including the IP address of the computer. Id. at 526-27. The Darby Court reasoned that the NIT, which was surreptitiously installed on the defendant's computer, gave the Government access to all of the contents of the computer, in which the defendant had a reasonable expectation of privacy. Id. at 529-30.

         RoundUp eMule is not analogous to the NIT at issue in Darby. It does not place any program on the target computer or give the Government access to anything other than the items in the “shared” folder, which are available to anyone using a similar peer-to-peer file-sharing program. Accessing files in a “shared” folder does not violate the Fourth Amendment because no reasonable expectation of privacy exists with regard to such files. See United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010); see also United States v. Dreyer, 804 F.3d 1266, 1278 n.6 (9th Cir. 2015) (citing United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008)). In Borowy, the Ninth Circuit also concluded that, even if the download of files known to be associated with child pornography was a seizure, it was supported by probable cause. 595 F.3d at 1049. Defendant's contention that law enforcement was required to obtain a search warrant before deploying RoundUp eMule lacks merit, and as a result, his motion to suppress was denied.

         B. Motion for Franks Hearing

         Defendant challenges the search warrant issued for his residence, electronic devices, and person on grounds that the affidavit filed in support of the search warrant application was deficient in two respects: (i) failing to indicate that the process by which defendant's IP address was revealed was automated and that the system being used had not been validated; and (ii) failing to state that defendant's prior conviction for child molestation ...

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