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United States v. Kienast

United States Court of Appeals, Seventh Circuit

October 23, 2018

United States of America, Plaintiff-Appellee,
v.
Neil C. Kienast, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Marcus A. Owens, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Braman B. Broy, Defendant-Appellant.

          Argued February 6, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:16-cr-00103-WCG-1-William C. Griesbach, Chief Judge.

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:16-cr-00038-JPS-1- J.P. Stadtmueller, Judge.

          Appeal from the United States District Court for the Central District of Illinois No. 1:16-cr-10030-MMM-JEH-1 - Michael M. Mihm, Judge.

          Before Ripple, Sykes, and Barrett, Circuit Judges.

          Barrett, Circuit Judge.

         In 2015, federal agents infiltrated a child pornography website called Playpen and deployed a computer program to identify Playpen's users. This operation resulted in the successful prosecution of defendants all around the country, including Neil Kienast, Marcus Owens, and Braman Broy, whose appeals are consolidated before us. Kienast, Owens, and Broy, like many other defendants caught in this sting, argue that the warrant authorizing the Playpen searches was invalid and that the fruit of those searches-the defendants' identities-should therefore have been suppressed. Every circuit that has considered the suppression argument has rejected it, and so do we. Even assuming that these digital searches violated the Fourth Amendment, the good-faith exception to the exclusionary rule applies. We affirm all three judgments.

         I.

         In 2014, the Federal Bureau of Investigation began investigating a child pornography forum called Playpen. This site created an anonymous space for its membership of over 150, 000 people to discuss, consume, and share child pornography.

         Playpen exists solely on the dark web, so it can be accessed only through a series of affirmative steps. First, the user must download The Onion Router (Tor) software. The Tor software makes user information untraceable by relaying it through a series of interconnected computers. It also allows a user to access the Tor network, where Playpen and other "hidden services" websites are hosted. Once on this network, a user must enter a specific sixteen-character web address to visit Playpen. Finally, Playpen requires visitors to create a username and password before granting them access to its contents.

         In 2015, FBI agents gained access to Playpen's servers and relocated them to a government facility in the Eastern District of Virginia. The FBI then operated the website for about two weeks in order to observe Playpen users. But while the FBI could observe Playpen traffic, Tor prevented it from identifying any specific user information.

         To unmask and apprehend the anonymous Playpen users, the FBI sought a warrant in the Eastern District of Virginia to use a Network Investigative Technique (NIT). The NIT deployed computer code instructing computers that accessed Playpen to send identifying information to the government.

         In support of its warrant application to deploy the NIT, the FBI submitted a 31-page affidavit from a special agent who specialized in child pornography cases. The affidavit detailed Playpen's architecture and contents, explained the nature of the Tor network, and described the numerous affirmative steps a user had to take to locate Playpen and access its contents. The affidavit further asserted that use of the NIT was necessary to identify and locate the users and administrators of Playpen, because other investigative procedures had either failed or would likely fail.

         The affidavit also provided details about the proposed NIT. Special computer code would be added to the digital content on the Playpen website. After a user entered a username and password to access Playpen, the website would cause the user's computer to download that code. The code would then instruct the user's computer to send back the following information: (1) the computer's IP address and the date and time that it was determined; (2) a unique identifier to distinguish data from that of other computers accessing Playpen; (3) the computer's operating system; (4) information about whether the NIT had ...


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