1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 2 3 4 UNITED STATES OF AMERICA, 5 Plaintiff, 6 vs. 7 DAVID TIPPENS, 8 9 10 11 12 13 Defendant. UNITED STATES OF AMERICA, Plaintiff, vs. GERALD LESAN, Defendant. 14 15 UNITED STATES OF AMERICA, 16 Plaintiff, 17 vs. 18 BRUCE LORENTE, 19 20 21 22 23 24 25 Defendant. ) ) ) ) ) ) ) ) ) ) Docket No. CR16-5110RJB ) ) ) ) ) ) ) ) ) ) Docket No. CR15-387RJB ) ) ) ) ) ) ) ) ) ) Docket No. CR15-274RJB Tacoma, Washington November 1, 2016 TRANSCRIPT OF EVIDENTIARY HEARING CONTINUED BEFORE THE HONORABLE ROBERT J. BRYAN SENIOR UNITED STATES DISTRICT COURT JUDGE Court Reporter: Teri Hendrix Union Station Courthouse, Rm 3130 1717 Pacific Avenue Tacoma, Washington 98402 (253) 882-3831 Proceedings recorded by mechanical stenography, transcript produced by Reporter on computer. Teri Hendrix, RMR, CRR - Official Court Reporter 2 1 2 3 APPEARANCES: For the Plaintiff: 4 5 KEITH BECKER U.S. Department of Justice 1400 New York Avenue NW, 6th Floor Washington, DC 20530 6 7 8 For Defendant Tippens: COLIN FIEMAN Office of the Public Defender 1331 Broadway, Suite 400 Tacoma, Washington 98402 For Defendant Lesan: ROBERT W. GOLDSMITH Law Office of Robert W. Goldsmith 702 2nd Avenue Seattle, Washington 98104 For Defendant Lorente: MOHAMMAD ALI HAMOUDI Office of the Public Defender 1601 5th Avenue, Suite 700 Seattle, Washington 98101 9 10 11 12 13 14 MATTHEW HAMPTON Assistant United States Attorney 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 15 16 17 18 19 20 21 22 23 24 25 Teri Hendrix, RMR, CRR - Official Court Reporter 3 1 Tuesday, November 1, 2016 - 9:30 a.m. 2 (Defendants present.) 3 THE CLERK: 4 THE CLERK: All rise. Court is again in session, the Honorable Robert J. Bryan presiding. 5 THE COURT: Please be seated. Good morning. I have 6 this morning reread your briefing on the motion to suppress. 7 I guess what I want to say is, you don't have to argue 8 everything that's in your brief. 9 to say, but give me some credit for having spent some time and 10 11 I want to hear what you have effort on this and having read the briefs. How much time do you get in the Supreme Court? 12 MR. FIEMAN: Not long. Well, on important cases, usually about 13 an hour, and I certainly tend to be much less than that, Your 14 Honor. 15 slowly at the same time. 16 My only caveat is that I need to learn to speak more THE COURT: I had a hard time hearing what you said. 17 I have to read it on real-time. 18 hear whatever you want to say about these matters. 19 that judges all over the country now have gone in different 20 directions on different issues within these cases, and I guess 21 I wanted to tell you something that should be obvious, and 22 that is that I am interested in Ninth Circuit law when there 23 is Ninth Circuit law. 24 have to follow if there is clear Ninth Circuit law. 25 Anyway, I am quite willing to I know Law from other circuits is not what I Anyway, let's proceed. Teri Hendrix, RMR, CRR - Official Court Reporter 4 1 2 3 MR. FIEMAN: Your Honor, I assume you want to hear from me first since I am the movant. Thank you. Your Honor, I just wanted to begin briefly by updating 4 you -- and I hope I am speaking closely enough to the 5 microphone -- on just some of the appeal status. 6 I wanted to say one thing on the threshold matter about 7 the status on appeal because you mentioned Ninth Circuit law, 8 and what appears to be emerging is a pattern of the government 9 delaying or avoiding appellate review that is desperately 10 needed in these cases in a timely manner. We should have had 11 the Michaud briefs, our reply brief, already submitted at this 12 point awaiting oral argument. 13 objection, has requested another 60 days and has informed me 14 that the solicitor general has not even approved the appeal at 15 this point. The government, over my 16 The Arterbury case, where there was suppression on 17 magistrate grounds, the government dismissed its notice of 18 appeal in that case last week. 19 discussed, deals with the magistrate court issues at the 20 motion to suppress, page 14. 21 appeal. 22 were three requests for continuances. The Barber case, which we The government dismissed its And I believe in the Levin case out of Boston, there 23 So in the threshold matter, I believe if the government is 24 confident in its arguments, particularly in the Ninth Circuit, 25 we should be getting more appellate guidance in a more timely Teri Hendrix, RMR, CRR - Official Court Reporter 5 1 manner, and that is not happening. 2 Now Your Honor, we left off yesterday talking about a 3 little bit about the governmental misconduct, and I just want 4 to -- 5 6 THE COURT: If you run that up about three or four inches, you will be speaking into the mike. 7 MR. FIEMAN: So I went back and looked at 3509. 8 not a discovery statute. 9 later. It's The second provision was added It's a general prohibition on the reproduction of 10 child pornography, and subsection 2 was added because the 11 government had taken such a strict view of discovery that they 12 were not even giving it to defense attorneys. 13 general prohibition. So it is a 14 I start there because what we've seen in this case, if you 15 look at all the circumstances, is a consistent position on the 16 part of the government that the rules don't apply to them in 17 this investigation. 18 3509(m), they say does not apply. Rule 41 does not apply. 19 The Magistrate's Act does not apply. The prohibition on 20 foreign searches doesn't apply. 21 don't apply because we are saying we have a law enforcement 22 exemption. 23 Comprehensive Drug Testing does not apply. 24 Magistrate Judge Buchanan about it being a global warrant. 25 never told Magistrate Judge Buchanan we were going to be The Rule 16 discovery rules The Ninth Circuit's explicit duty of candor from We did not tell Teri Hendrix, RMR, CRR - Official Court Reporter We 6 1 2 actively distributing child pornography from Playpen. We included a misleading description of the home page 3 which, regardless of how that happened -- and clearly, the 4 government was aware of it -- they never submitted a corrected 5 application or did anything to make the home page conform to 6 the description in the warrant. 7 We have the face of the warrant itself, Your Honor. That 8 warrant itself, the first page where it talks about the place 9 to be searched, in the Eastern District of Virginia, period. 10 That was drafted -- submitted as a draft warrant by a 11 prosecutor in Virginia, and I am going to be talking about how 12 they are saying now, even though it says Eastern District of 13 Virginia, period, on the face of the warrant, that doesn't 14 bind us either. 15 what, Your Honor, we acted in good faith and you should ignore 16 every one of those things. 17 And then they turn around and say, you know So let me first talk about suppression or, I guess more 18 technically, exclusion based on the discovery issues. 19 status of discovery at this point, Your Honor, is unchanged 20 since Michaud, and we've been pursuing some sort of 21 accommodation or middle ground with the government for over a 22 year. 23 components in September of 2014. 24 25 The We put our first discovery request in for the NIT So Mr. Tsyrklevich describes very succinctly in his original declaration, which we have attached to docket 35, the Teri Hendrix, RMR, CRR - Official Court Reporter 7 1 four components that make up an NIT. 2 because -- rather than just code or malware -- because they 3 all work in conjunction. 4 you say well, I have got the engine, but I don't need the 5 wheels. 6 It's called a technique It's like you can't drive the car if They all work in conjunction. So it's unchanged. We still do not have the exploit 7 component; that's unchanged since Michaud. 8 server component, unchanged. 9 payload, unchanged. 10 We don't have the We don't have the complete And I want to point out here, Your Honor, that I do think 11 there was one particular part where Professor Levine was not 12 candid. 13 initially informed the Court that he had reviewed the payload, 14 our payload. 15 only looked at certain portions that were "human-readable." 16 Well, that is exactly the same situation that Mr. Tsyrklevich 17 was in when this whole discovery process started to become 18 more serious. 19 If you look at his testimony and his declaration, he As we learned on cross-examination, he said he You may remember from his declaration that he could not 20 really determine what the payload did because of the 21 incomplete information. 22 figure out what a human unreadable code does, yet he didn't 23 even bother to do it himself. 24 according to Mr. Tsyrklevich's declaration, and all the 25 defense experts, including Professor Reyzin from Boston who Mr. Levine says that it's not hard to And in fact, it can't be done, Teri Hendrix, RMR, CRR - Official Court Reporter 8 1 reviewed all of them, without all the components working in 2 conjunction. 3 Now, Your Honor, what's also remarkable here is we talked 4 a little bit along the way -- I know Your Honor is familiar 5 with the Nebraska cases, Operation Torpedo, the Cottom case. 6 Everything that was available was turned over in that case, 7 and if it was material then, how is it not material now? 8 9 Well, I understand that Your Honor is privy to information about why this is so sensitive, but what I am going to be 10 talking about is essentially where we ended up in Michaud. 11 The government has a right to withhold sensitive information 12 because you have made that determination, but that does not 13 answer the question of whether our clients can get a fair 14 trial or whether there needs to be some remedial or balancing 15 sanction in order to make this consistent with due process. 16 So I want to talk a little bit -- point you to the law 17 that you are asking for, Your Honor -- and start with 18 Soto-Zuniga, which is a remarkable decision that came down 19 recently, Your Honor, because it essentially tracked your 20 analysis in Michaud, relying on the same cases of 21 Hernandez-Meza, Budziak, the same law that we laid out, and 22 essentially summarized it and emphatically reaffirmed it. 23 So as we have on the monitor, Your Honor, just a few basic 24 points. The Ninth Circuit has said "materiality is a low 25 threshold." In addition they say, "The test is not whether Teri Hendrix, RMR, CRR - Official Court Reporter 9 1 the discovery is admissible at trial, but whether it may 2 assist in formulating a defense, or even just lead to 3 additional admissible evidence." 4 think, remarkable outer limit that the Ninth Circuit has laid 5 out because it really defines -- it makes it simple. And this is the really, I 6 "Information is material even if it simply causes a 7 defendant to abandon a planned defense and take a different 8 path," and this is not a heavy burden for us to meet. 9 material as long as there is a strong indication that it will It is 10 play an important role in uncovering admissible evidence, 11 aiding witness preparation, corroborating testimony, or merely 12 assisting with impeachment or rebuttal. 13 Your Honor, I don't think there is any reasonable dispute 14 or question about the materiality of this evidence, because 15 think about it in these terms. 16 runs at this. 17 and all the reconsideration litigation, and now the third time 18 around they have Professor Levine, one expert against our six. 19 Now, let's assume for the moment that Professor Levine had The government has taken three We had the initial motion to compel on Michaud 20 actually looked at all the components, which he did not do. 21 Let's assume that he was not relying on Agent Aflin's 22 declarations about what he thinks he did or did not do, and 23 let's assume that Agent Alfin actually looked at this stuff, 24 which he didn't. 25 But even if all that could be credible, those issues are, So it's like an elaborate game of telephone. Teri Hendrix, RMR, CRR - Official Court Reporter 10 1 first of all, for a jury. 2 and we look at this stuff and it leads us to abandon all the 3 defenses that we are formulating in terms of the exploits, 4 damage and changes to our client's computers, it would still 5 be material in discovery. 6 threshold. 7 And secondly, even if he is right, So we are very far beyond this Your Honor, you will recall -- and I just want to show how 8 far along we are. 9 about focussing on Ninth Circuit law, let me direct Your Honor 10 to a case that we have cited, and that is the Budziak case, at 11 697 F.3d 1105. 12 And again, following up on your question And I have the relevant quotes on the screen. This case is interesting. You may remember I started with 13 Professor Levine, asking him if he was a specialist in 14 something particularly called peer-to-peer software and asked 15 him some basic questions about, you know, whether an expert 16 should be able to look at that software. 17 software, Your Honor, is fairly commonplace. 18 compares to the technical issues that we are dealing with in 19 this case, very simple. 20 Now, peer-to-peer It frankly Most of it is off the shelf. Now, in Budziak where the issue was peer-to-peer software, 21 they held as follows: "A party seeking to impeach the 22 reliability of computer evidence" -- which is exactly what we 23 are trying to do here, Your Honor -- "should have sufficient 24 opportunity to ascertain by pretrial discovery whether both 25 the machine and those who supply it with data have performed Teri Hendrix, RMR, CRR - Official Court Reporter 11 1 2 their tasks accurately." We are not required and should not, in fact, take the 3 government's mere assurances, especially when nobody, 4 including Agent Alfin, has actually seen this data. 5 really this is the kicker, the second quote, this is where 6 they come down: 7 should tender a witness to state the results of a computer's 8 operations without having the program available for defense 9 scrutiny and cross-examination." And then "It is incomprehensible that the prosecution And this is a case with 10 simple software, nothing like the complicated, sophisticated 11 and novel components that we are dealing with here. 12 Your Honor, in Michaud, you summed it up in your oral 13 findings, and I will quote -- this is from docket 31.1 of the 14 Tippens case, the transcript we supplied: 15 the defense has requested is central to the case, it's central 16 to the search warrant that was issued, it's central to the 17 proof that might be offered at trial, it is the background for 18 the whole case." "The discovery that 19 None of that has changed. The discovery issues are 20 exactly the same now, Your Honor. 21 you must recall that the Ninth Circuit ultimately ruled that 22 it was an abuse of discretion for the trial judge not to order 23 discovery. 24 recognized that much of that information was sensitive and 25 potentially subject to law enforcement exemptions. In Soto-Zuniga, finally, In the very same case, Your Honor, the court Teri Hendrix, RMR, CRR - Official Court Reporter The Ninth 12 1 Circuit said ultimately it makes no difference, you've got to 2 fashion appropriate protective orders, or if those are not 3 sufficient, they remanded with an instruction that the 4 government has a window of opportunity -- I am quoting -- 5 either to elect between accommodating discovery requests with 6 protective orders, security measures or dismiss it. 7 anything else was an abuse of discretion. And 8 Now, Your Honor, that ruling is in fact grounded in a 9 Supreme Court decision, United States v. Jencks, 353 U.S. 657, In Jencks, the issue 10 and I have that up on the screen, too. 11 came down to what we have here. 12 there is an unbridgeable conflict between the government's 13 election or right to keep certain information exempt or secret 14 and a defendant's right to effective representation and a fair 15 trial. 16 There are rare cases where In Jencks, this is where they came down -- and I have the 17 quote on the screen, Your Honor: 18 criminal cases is that, since the government which prosecutes 19 an accused also has the duty to see that justice is done, it 20 is unconscionable to allow it to undertake prosecution and 21 then invoke its governmental privileges to deprive the accused 22 of anything which might be material to his defense." 23 24 25 "The rationale of the This is what they ultimately ruled, and Soto-Zuniga tracks in its entire analysis. The second quote from pages 671 to 672 is that, "The Teri Hendrix, RMR, CRR - Official Court Reporter 13 1 criminal action must be dismissed when the government, on the 2 ground of privilege, elects not to comply with an order to 3 produce." 4 thing that I think is very important is where this decision 5 rests. 6 actually is not even a decision that a trial judge should be 7 forced to make, although ultimately they will have to under 8 Rule 16 if the government chooses not to. 9 Here's the final thing, Your Honor, and the one The Supreme Court made a very interesting point. This But what the Supreme Court said is that it's actually the 10 government's burden, because they have the overarching 11 interest of fairness in upholding the Constitution. 12 government's burden "not to be shifted to the trial judge, to 13 decide whether the public prejudice of allowing the alleged 14 crime to go unpunished is greater than that attendant upon 15 disclosure." 16 this case, which is why we've made the motion to exclude and 17 suppress on discovery grounds. 18 It is the That's their duty, and they won't fulfill it in Now, Your Honor, let's just talk about how central this 19 evidence is. Let's go back to the amicus brief that Mozilla 20 submitted in Michaud, and it's cited in our exclusion motion. 21 Here, this is essentially a third party; they have no stake in 22 this case. 23 network because they make the browser that is most commonly 24 used, so they have extraordinary technical knowledge about the 25 Tor network; it's really on the size of Google. Mozilla is a key technical component of the Tor They also Teri Hendrix, RMR, CRR - Official Court Reporter 14 1 make a Firefox browser for general use. 2 concluded -- not even in reference to our experts, just in 3 terms of the limited disclosures that the government had made 4 through Agent Alfin: 5 declaration of Agent Alfin suggests that the government 6 exploited" -- using the exploit -- "the very type of 7 vulnerability that would allow third parties to obtain total 8 control of an unsuspecting computer." 9 Here's what they "The information contained in the That goes to the heart of a big part of our defense in 10 this case, not even the Fourth Amendment issues and all the 11 essential cross-examination issues at trial, all the chain of 12 custody issues. 13 right there, and that's never been disputed by any government 14 expert. 15 But I mean, that's a big part of our defense So let me continue. That tracks exactly what 16 Mr. Tsyrklevich told this Court a year ago, and I am talking 17 specifically about the exploit right now. 18 Levine initially tried to carve out the exploit as somehow 19 separate and apart from the rest of the components, but I will 20 get to that in a moment. 21 I know Professor But Mr. Tsyrklevich, on page 3 of his declaration, talks 22 specifically about the exploit, and he talks about how it 23 works in conjunction with the payload, and he's unable to make 24 a determination about what happened to our clients' computers 25 without the code. Now, that's not just the defense expert Teri Hendrix, RMR, CRR - Official Court Reporter 15 1 2 saying that. It's essentially the government, too. Now, this is Agent Alfin's testimony from October 11th -- 3 and I had this up earlier with Professor Levine because he 4 ultimately had to agree with it. 5 may make fundamental changes or alterations to a computer 6 system or disable a security firewall. 7 So they agree that exploit Now, I know that the government keeps saying that that 8 didn't happen in this case. 9 from the beginning, and we have no basis to believe it or 10 challenge it when we get to trial or in pretrial motions. 11 That's what they have been saying Now, in fact, interestingly, Professor Levine ultimately 12 ended up agreeing not only with me but with Aflin's statements 13 about what exploits can do. 14 Miller. 15 Tsyrklevich, unlike Professor Levine, have all worked on prior 16 NIT cases, including in Miller and Kasal's case, Operation 17 Torpedo. 18 He also agreed with Professor Professor Miller and Shawn Kasal and Vlad Professor Miller submitted to this Court -- and all of our 19 witnesses have been available to the government, Your Honor; 20 they have not requested to cross-examine them or challenge 21 their declarations, apart from Professor Levine. 22 Professor Miller informed this Court that the alterations 23 caused by exploits can cause a loss or alteration of data or 24 alter any of the settings, and Professor Levine agreed with 25 that. But Teri Hendrix, RMR, CRR - Official Court Reporter 16 1 Ultimately, Professor Levine, as you can see from 2 paragraph 9, ultimately said that all of his information about 3 the exploit came solely from Agent Alfin and Agent Alfin has 4 not seen it. Then, of course, we have the server component 5 that's missing and the incomplete payload. 6 Your Honor, let me talk about just the flow of the data 7 itself, and I have the diagram up on the screen. 8 9 And then as well, We now know, which was not clear at the time of the Michaud ruling, if I recall correctly, that a big part of this 10 communication with these target computers was not even 11 encrypted. 12 the government's server, which is listed as "destination," was 13 not encrypted. 14 The part from the exit relay on the Tor network to Professor Levine spent a long time talking about the "to" 15 and "from" addresses, the packets. And the problem is that 16 you cannot tell what's in the package from the address, and 17 more importantly, it's more really like an evidence room. 18 Assuming the package gets there, if you have the evidence room 19 unlocked, everything is misnumbered, the data that they are 20 putting out -- going to try to put out at trial -- we have no 21 idea if it matches up because we have not seen the server 22 component. 23 So we are in exactly the same position that we were in 24 Michaud, and even if there was a legitimate dispute on the 25 core issues between the experts, that's a trial issue. Teri Hendrix, RMR, CRR - Official Court Reporter We 17 1 cannot even cross-examine the government effectively on most 2 of this evidence without the discovery. 3 Let me now turn, if I may -- unless you have any questions 4 about the discovery and exclusion on that ground, Your Honor 5 -- to the Fourth Amendment issues. 6 second and talk specifically about the Fourth Amendment 7 context. 8 represent something of a crossroads, where the courts really 9 must choose how they are going to exercise oversight in Let me back up for one Your Honor, I really believe that these cases 10 highly-technical cases and deal with the ever more 11 sophisticated and secret technology that we are going to be 12 seeing. 13 You know, a lot of this is really hard to grasp. We talk 14 about Russia hacking into servers, Yahoo cooperating with the 15 FBI to read the email content of customers. 16 the Court at various times about the Stingray cases where the 17 government did not disclose that they were using technology. 18 There's litigation going on in California right now where they 19 still won't disclose aspects of that. 20 We've talked to At some point, we are going to be losing control of our 21 Constitution's machinery. If there isn't oversight that's 22 meaningful by the courts, which involves candor on the part of 23 the government and the ability of defense counsel to challenge 24 the presumptions and representations of the government's 25 experts, and ultimately the courts, to ensure that the Teri Hendrix, RMR, CRR - Official Court Reporter 18 1 government is not slipping things by magistrate judges or 2 exceeding their powers without comprehensive judicial 3 oversight. 4 and transparent going forward? 5 required to follow the rules even if they disagree with them 6 because we live by the rule of law? So will the courts require the FBI to be candid Will the government be 7 When it comes to law enforcement, are we going to start 8 saying the ends justify the means, no matter the collateral 9 consequences or the revictimization that's involved? These 10 are core principles of our judicial system that I believe are 11 seriously implicated in this case. If there aren't some bright 12 lines laid down, then the technology and the secrecy is going 13 to simply get away from us. 14 Now, what do we know now, Your Honor, six months after the 15 Michaud ruling. 16 request and we get new information, it's like -- to use an 17 appropriate metaphor, like peeling an onion. 18 another layer of fact there that we did not know about. 19 mean, we did not know this was a truly global warrant before. 20 There are 120 countries and territories listed outside the 21 United States that the FBI hacked into, and they also hacked 22 into something called a "satellite provider." 23 into outer space as well. 24 25 Every time Your Honor grants a discovery There's just I So now we are Now, they did that -- and we've submitted this as an exhibit in our supplemental discovery. They did this in spite Teri Hendrix, RMR, CRR - Official Court Reporter 19 1 of the fact that -- and I have this on the screen, Your 2 Honor -- the U.S. Department of Justice assuring the Federal 3 Rules Committee. 4 up: 5 extraterritorial applications and consistent with the existing 6 language of Rule 41" -- and I have a typo there because I had 7 to type it out -- "this amendment does not purport to 8 authorize courts to issue warrants that authorize searches in 9 foreign countries." 10 And I will read from the letter that I put "In light of the presumption against international That's even with the proposed amendment, let alone the existing one. 11 Did the government disclose to Magistrate Judge Buchanan 12 that this was a global warrant when she had never issued such 13 a thing? 14 Act. 15 little to say about it in its pleadings. 16 seriously dispute that it is jurisdictional. So Your Honor, let's talk about the Magistrate's It's interesting that the government has very, very They do not 17 Congress made the decision about the limitations in terms 18 of the warrant issue and spoke of it, under Rule 41, which is 19 incorporated by statute and then also under the Magistrate's 20 Act. 21 maps in terms of the remedies that may be appropriate here, 22 every case where the defendants have raised the Magistrate's 23 Act 24 found they violated, and only one found that there was good 25 faith, which I will get to shortly. Every case -- although the courts have been all over the issue -- and I think there are six -- the courts have Teri Hendrix, RMR, CRR - Official Court Reporter 20 1 The act is jurisdictional. It cannot be expanded. 2 cannot be changed. 3 distribute child pornography when Congress has expressly 4 prohibited it. 5 the law and then claim reasonable minds may differ about 6 whether you should follow it. 7 It's just like 3509(m). It You don't get to You don't get to ignore the plain letter of Now, Your Honor, the Court previously found that the Rule 8 41 violations -- we didn't get into the Magistrate's Act 9 issues, but now moving to the Rule 41 violations, the Court 10 found that there was no -- there was no provision in Rule 41 11 that allowed for a global one, but we didn't know it was quite 12 global at that point, but apparently the Court made those 13 findings, and they stand here. 14 But more importantly, I don't think there can be any 15 serious dispute, knowing what we know now, that first of all, 16 we've satisfied everything the Ninth Circuit requires to show 17 that this was not a technical violation, this was a 18 fundamental violation. 19 Honor, we do submit, require suppression. 20 Magistrate's Act, which its own grounds for suppression, in 21 Rule 41, we know this was clearly prejudicial, the first 22 prong, because all we have to show is that the search would 23 not have occurred without the violation. 24 be searching in Washington with a Virginia warrant unless they 25 violated Rule 41. And fundamental violations, Your So apart from the Well, they couldn't Teri Hendrix, RMR, CRR - Official Court Reporter 21 1 The privacy interest at stake here isn't the IP address or 2 MAC address, it's the fact that they went into a personal 3 computer in our clients' homes. 4 Riley and Jones and Kyllo. 5 did not address any of that Supreme Court authority in its 6 briefing, so this is dispositive. 7 location of the search. 8 9 We briefed that extensively, The government very predictably The privacy interest is the And by the way, I mentioned the MAC address. up one second on that. Let me back One of the things that we also learned 10 last Wednesday -- thanks to your discovery order -- is that 11 the NITs did not also always capture the MAC addresses. 12 will notice that in Exhibit 1 of the supplemental submission 13 in the letter. 14 exploit was programmed to reliably and consistently capture 15 the IP and MAC addresses. 16 MAC addresses were not always captured. You This So we already know, just from that very limited 17 disclosure, that the exploit, the NIT, did not operate as 18 intended in every single case. 19 either a programming error or bugs or inconsistent deployment 20 possibly depending on the type of operating system that was on 21 the computer, possibly depending on the type of security 22 settings, all sorts of potential issues because the government 23 has now disclosed that it did not even act consistently as 24 instructed. 25 That alone is a red flag of So, Your Honor, we know this is prejudicial because of the Teri Hendrix, RMR, CRR - Official Court Reporter 22 1 search location. 2 We know this is deliberate. I mean -- THE COURT: Just a second. Let me go back here. I 3 am curious about the relationship with the Magistrate Judge's 4 Act and Rule 41. 5 statute, but apparently -- well, I don't know. 6 the effect of a statute? 7 Rule 41 itself does not appear to be a MR. FIEMAN: It does, Your Honor. 8 exact provision. We did cite it. 9 statute is implementing Rule 41. Does it have I have to find the But Rule 41 was -- the So it's a very short 10 statute. I will find the citation. So Rule 41 itself is 11 statutory -- and I will give you that citation -- and 12 therefore, we are dealing with two separate jurisdictional 13 statutes, Rule 41 incorporated and then the Magistrate's Act. 14 So they both have statutory effect -- and, Your Honor, I am 15 sorry, I don't have that particular citation, but I do know 16 where it is in the pleadings. 17 THE COURT: I don't know why our librarians don't do 18 things the way I think they ought to do them, but having a 19 rule and not having it cited as a statute, if it is a statute, 20 doesn't make much sense to me. 21 I had another question, but now it escapes me. 22 MR. FIEMAN: 23 prejudice or the MAC address. 24 THE COURT: 25 But that's besides the point. The last thing I mentioned was the I know what I was going to ask. This new rule that would govern such matters, is that addressed to the Teri Hendrix, RMR, CRR - Official Court Reporter 23 1 Congress or the rule making? 2 MR. FIEMAN: The way the process works is that DOJ, 3 as we noted from the congressional research materials that we 4 provided to you largely in response to the In Re Search 5 Warrant case, the Texas case that denied the NIT warrant, then 6 began requesting to the Federal Rules Committee -- I think the 7 chair of that is Second Circuit Judge Raggi -- that there be a 8 rule change, that it reviewed and submitted to the Supreme 9 Court. The Supreme Court then forwarded its proposed change 10 to Congress, and if Congress does not act on it, it 11 automatically becomes a rule. 12 There are bipartisan bills pending in both the House and 13 Senate to block that in large part because of some of the 14 revelations in these cases. 15 of the congressional research report that we submitted to Your 16 Honor, two things. 17 requested the rule change because they know the existing rules 18 do not allow it. But you will also note, in terms One is that it is very clear that DOJ That's all in their analysis. 19 THE COURT: 20 MR. FIEMAN: Okay. Go ahead. There's a way to do this, and there will 21 be new challenges and new issues depending on how that rule is 22 drafted, the scope of the rule, but that's how the process 23 works. 24 are going to interpret Rule 41 for our own purposes, despite 25 the fact that Congress has codified in both the Magistrate's You don't get ahead of Congress and decide: Teri Hendrix, RMR, CRR - Official Court Reporter Well, we 24 1 Act and Rule 41 that we can't. 2 deliberate. 3 to suppression under Ninth Circuit law, Your Honor. 4 So it was prejudicial, it was And either one of these grounds alone would lead We've talked about the Weiland case at some length, its 5 constitutional magnitude. If a rule violation like this is 6 not of constitutional magnitude, I don't know what is. 7 mean, we are talking about core privacy interests. 8 talking about jurisdictional interests. 9 the fundamental relationship between Congress and the I We are We are talking about 10 Executive Branch when Congress makes laws and rules and the 11 Executive Branch chooses to interpret them as they will. 12 there is a tremendous amount constitutionally at stake just 13 folded within what seems like rule issues. 14 So So let me turn to what the government ultimately relies on 15 here, Your Honor, because I think where we stand is pretty 16 clear; what happened is pretty clear. Ultimately, what they 17 want the Court to find is good faith. Well, let's start with, 18 again, Ninth Circuit law, the Comprehensive Drug Testing case, 19 621 F.3d 1162, and I have the relevant quotes from 1178 on the 20 screen, Your Honor. 21 There, the Ninth Circuit, in another case where the 22 government was, in their view, forum shopping and manipulating 23 information between several different jurisdictions in order 24 to obtain both search warrants and subpoenas, the Court there, 25 just like in the Sherman case when it comes to distribution of Teri Hendrix, RMR, CRR - Official Court Reporter 25 1 child pornography, the Ninth Circuit in this case warned the 2 government about its approach to its representations to the 3 courts that issued those search warrants and subpoenas, and 4 they said that "omitting highly relevant information 5 altogether -- and this is from either subpoena applications or 6 search warrant applications -- "highly relevant information 7 altogether is inconsistent with the government's duty of 8 candor in presenting a warrant application." 9 And this is where -- you may remember, I think in the 10 Schesso case, we struggled with CDT, Your Honor, and there was 11 some forum shopping between state courts and federal courts 12 going on there; you actually gave a suppression order there. 13 But what we were focussing on there, and what's still highly 14 relevant is again what the Ninth Circuit said, "a lack of 15 candor" -- they are not even talking about Franks issues, they 16 are talking about a higher principle related to the 17 government's duty of oversight -- excuse me, the Court's duty 18 to oversee the government -- "a lack of candor in any aspect 19 of the warrant application must bear heavily against the 20 government in the calculus of any subsequent motion to return 21 evidence or suppress seized data." 22 So I have already listed a variety of ways that the 23 government was less than candid. They are really hanging 24 their hat on the fact that on page 29 of this application, 25 there are two words saying activating computers "wherever Teri Hendrix, RMR, CRR - Official Court Reporter 26 1 located." 2 think, very clearly understood what they were asking for and 3 how she dealt with it. 4 I am going to talk about how Judge Buchanan, I But to finish up with the argument, I would like Your 5 Honor, please, to take a look at the warrant that the 6 government submitted in the texas.slayer case, District of 7 Colorado. 8 think they ever caught the target. 9 court. This was a prior NIT case. It never -- I don't It never was challenged in We also provided copies of the Nebraska warrants. 10 They are saying, this is how they used to write their NIT 11 warrants. 12 Colorado "and elsewhere." 13 Here, there they are asking for an NIT warrant for They are forthrightly indicating on the cover, they 14 actually amended the search warrant to provide this 15 information that was going to be outside the district. They 16 never went back to Magistrate Judge Buchanan here. 17 Colorado and Nebraska and these prior NIT cases, they were 18 never challenged in terms of the Rule 41 issues, so we didn't 19 get rulings on that. 20 warrant, this is outside our district. 21 warrant. So in But they put right on the face of the Compare that to our 22 The only location specified in the warrant itself, or 23 anywhere in the attachments, is Eastern District of Virginia, 24 period. 25 will tell you why, Your Honor, because all you have to do is Why did they do that? Why did that change come? Teri Hendrix, RMR, CRR - Official Court Reporter I 27 1 look at the sequence of events. The Colorado and Nebraska 2 warrants were prior to the In Re Search Warrant case by Judge 3 Stevens in Texas, the very case that's discussed at length in 4 the congressional analysis of why the DOJ is seeking the rule 5 changes. 6 It's referenced, in fact, in the communications by the 7 Department of Justice when they first sought the rule changes. 8 What triggered Judge Stevens was that he saw that the warrant 9 application was intended to be executed -- the warrant was 10 intended to be executed outside his district. 11 they do? So what did They stopped saying "and elsewhere." 12 Now, that's appropriate if you intend to be sincere about 13 that, and Judge Buchanan, I believe, took that in good faith. 14 You know, we keep coming back to what the government intended 15 to do. 16 hell is paved with good intentions, Your Honor, and the reason 17 we have rules is because when we have judicial oversight and 18 we have the duty of candor, the courts need to weigh in, in a 19 meaningful way, both before these types of warrants are issued 20 and afterwards, which is where we are in this process. 21 22 23 They intended to catch pornographers, but the road to So let's talk about what was presented to Judge Magistrate, Your Honor, and the claimed good faith -THE COURT: Was there a record made by Judge Buchanan 24 in her chambers when she issued this warrant? I assume she 25 took the testimony of the person that signed the application. Teri Hendrix, RMR, CRR - Official Court Reporter 28 1 MR. FIEMAN: What the government has indicated -- and 2 not these two gentlemen, but what I have seen in other 3 pleadings, so maybe they can clarify -- is that the paper 4 application was simply submitted to the judge, and apparently 5 there was no actual testimony or questions taken. 6 relied solely on the face of the warrant for saying this was a 7 Virginia warrant. So she 8 Now, let's talk about that warrant because this is a big 9 part of -- and we think the simplest and indisputable way to 10 suppression, Your Honor. 11 candid in the application when they stuck in -- on page 29 -- 12 the very technical and dense warrant, that they were going to 13 search anywhere, 120 countries, something that they already 14 told Judge Raggi and the rules committee, they can't do. 15 let's put aside the fact that you can't reconcile that. 16 Even if the government had been The face of the warrant controls. But In the Ninth Circuit, 17 you cannot reference the application to construe or interpret 18 or expand the warrant, unless it's incorporated and attached. 19 That's SDI Future Health, 568 F.3d 684. 20 screen, Your Honor, what they are holding. 21 why I say this is indisputable, it's because it hasn't been 22 disputed. 23 brief. 24 25 It's up on the And Your Honor, We cited all this Ninth Circuit authority in our We cited SDI. We quoted this text. It's another rule. In this case, it's not Rule 41, the Magistrate's Act or 3509. Teri Hendrix, RMR, CRR - Official Court Reporter 29 1 It's the rule of construction that the Ninth Circuit has laid 2 down. 3 either. 4 Well, I guess this doesn't apply to the government So in the second quote I have up, Your Honor, the Ninth 5 Circuit held as follows: The rules of construction for a 6 warrant. 7 arbitrary and unreasonable invasions of privacy," and that's 8 why all of this is of constitutional magnitude, but they held 9 at the end, the search warrant itself, the actual warrant, "is "The warrant requirement is a means of preventing 10 the tangible evidence that precautions have been taken to 11 ensure that no such invasion has occurred." 12 So what does the government argue in the face of this 13 Hornbook, Black Letter Ninth Circuit law? 14 Judge Buchanan's fault. 15 warrant that, even though judges are presumed to know and 16 follow the law, that legal presumption, she knowingly signed a 17 warrant -- that is, she can't sign under the Magistrate's 18 Act -- they tell the Court that she knowingly signed a warrant 19 that does not comply with Rule 41. 20 They suggest it's They are saying that she signed a They say that she knowingly signed an unprecedented global 21 warrant for 120 countries and the satellite that the 22 Department of Justice in its own material says you can't 23 issue; that she disregarded the fact that, as a core 24 constitutional requirement, a warrant needs to be 25 particularized as much as possible. Teri Hendrix, RMR, CRR - Official Court Reporter 30 1 The government contends that Judge Buchanan got all that 2 wrong or simply chose to ignore the rules so that they could 3 pursue this investigation. 4 according to them, she didn't amend the face of the warrant to 5 say, for example, as they did in the Colorado warrant "and 6 elsewhere," or "outside the state" or "internationally." 7 didn't bother to do that, according to the government. 8 did not stop to incorporate the affidavit by reference, by 9 writing that in, which she would be required to do under all She did that even though, 10 the circuits, and she also didn't bother to attach the 11 affidavit. 12 She She So I guess all of this, Your Honor, is Judge Magistrate 13 Buchanan's fault. I choose to believe that Judge Buchanan did 14 something much simpler. 15 that her jurisdiction is her district; I believe that she 16 approved a warrant that says on its face Eastern District of 17 Virginia and did not incorporate or attach the application 18 because she knows it was limited to her district, they could 19 go after all activating computers there, consistent with the 20 law and consistent with the rules. 21 I believe that she knew full well Then they build their case, like they do in any other 22 case, you keep expanding. You get maybe several hundred 23 computers in Virginia. 24 there who are distributing or downloading child pornography or 25 emailing and sharing files, you get IP addresses off of their Those computers you search, people Teri Hendrix, RMR, CRR - Official Court Reporter 31 1 email and file sharing for other districts, you go to those 2 other districts, you get proper warrants, and then it takes a 3 little more time and effort, but that's how you build a case. 4 The government, however, says no, what the magistrate did 5 is she exceeded her authority under the Magistrate's Act and 6 Rule 41 and issued a global warrant without even bothering to 7 make her intentions clear or incorporate the application. 8 I believe that would be incompetent, and I don't believe 9 that's true. 10 her warrant. 11 12 Now, Your Honor, I am near closing. 15 I just want to say a little bit -- 13 14 I believe she did the right thing, she limited THE COURT: Don't say you are near closing unless you mean it. MR. FIEMAN: I am much nearer. I just want to talk 16 briefly about the probable cause issues because, Your Honor, 17 one of the things you previously observed in a couple of my 18 cases is that the broader the warrant, the more expansive, the 19 clearer the facts in support of probable cause should be. 20 It's just what the bedrock is. 21 Now, here we have a warrant of unprecedented scope, 22 100,000 computers, visitors around the world, a global 23 warrant, based on what probable cause? 24 the home page -- and we've submitted that the actual home 25 page, not the one that was described in the warrant because Well, just going to Teri Hendrix, RMR, CRR - Official Court Reporter 32 1 there's no child pornography on that home page, and people 2 were -- the ITs were deployed as soon as they landed. Now, in Gourde -- and I know this case, Your Honor, it was 3 4 a very important case in some respects because the court was 5 struggling -- the Ninth Circuit was struggling with, when do 6 you get to search somebody's computer just because they are on 7 the internet and maybe surfing or going to places in an 8 exploratory way or whatever, or looking for kinky things that 9 aren't necessarily illegal, when do you have enough to 10 actually invade their home computer? This is the Gourde case, and what they found -- there are 11 12 certain principles that they lay out. 13 to stress it was somebody who maybe got to that site and knew 14 what they were getting into. 15 defendant had not taken advantage of any free tours and maybe 16 after viewing, finding there was pornography, backed out of 17 it. 18 had maintained it for several months and, most importantly, 19 "he was not a person who became a member" -- I am quoting, 20 this is on the screen -- "but the next morning suffered 21 buyer's remorse" or a belated fear of prosecution and canceled 22 his subscription. 23 First of all, they have Now, here they noted that the There was evidence that he had purchased a membership, People make mistakes, and they buy memberships to websites 24 thinking that it's child erotica or all sorts of perverse 25 things that you may find distasteful and illegal, but you Teri Hendrix, RMR, CRR - Official Court Reporter 33 1 clearly have to show the person that you are searching, the 2 target knew exactly what they were getting into. 3 Gourde to here. 4 So compare Well, because of the government not letting Judge 5 Magistrate Buchanan know that the home page had changed, that 6 there was no longer any child pornography on it -- if you look 7 at the home page, there's no reference to Lolita, no reference 8 to child pornography, you are not required to pay memberships. 9 There was -- they did not offer a free tour or a preview of 10 the content, as was the case in Gourde. 11 people -- and these numbers bear it out -- probably went there 12 thinking they were getting into some kind of fetish site, an 13 adult site, took a look at what was there maybe, backed out 14 and never went back. So a lot of these 15 But this warrant, according to them on this probable 16 cause, allowed them to search 100,000 people who just got to 17 the home page, and they conceded that everything else in the 18 home page, the technical language, that would not have meant 19 anything to the casual observer, and in fact, it's commonplace 20 for sites like Facebook. 21 So even though they are aware that what you see, the 22 unabashed announcement, what they talk about in Gourde is the 23 key to probable cause, when you are relying solely on 24 accessing a website to do a search, they put an inaccurate 25 description of that home page in the warrant. They kept that Teri Hendrix, RMR, CRR - Official Court Reporter 34 1 home page the same the entire time; it wasn't that they even 2 said, you know what, we see now that it was changed out, we 3 need to put up the exact home page that we described to Judge 4 Buchanan so that's consistent with the warrant. 5 change it back; they had control of the site. 6 informed Magistrate Buchanan that the appearance of the site 7 had changed, even though, at least the Ninth Circuit, that 8 unabashed announcement, that appearance, is critical. 9 They didn't They never Now, how do we know -- and then look at the scope. So 10 Your Honor is concerned about both what facts were key for 11 probable cause and then the scope. 12 claim authorization to search 100,000 computers anywhere in 13 the world based on an ambiguous web page, with no 14 particularized information about any of the targets that were 15 going there, no collector profile, nothing to supplement it 16 except what is on the home page. 17 visitors, they got 8700 IP addresses and they arrested now 18 almost what, 18 months later, 16 months later, 214 people. 19 So the scope is, they Well, out of that 100,000 Now, I understand that's a little bit looking backwards, 20 but I think it is really important. If this was so obviously 21 a child pornography page, and there are 100,000 people going 22 to it, well, then likely every one of them is committing a 23 crime. 24 government says it has opened, according to its latest 25 disclosure, they have made only 214 arrests, and as far as I And yet, even out of the 1152 investigations that the Teri Hendrix, RMR, CRR - Official Court Reporter 35 1 2 can tell, all those people are just for possession. In the course of doing that, that classic -- it's a 3 classic dragnet. In the course of doing that, they then 4 pumped out a million or more images of child pornography. 5 me just talk about how that works. 6 the site, and if they did want to look at images -- we don't 7 know how many of these people actually looked at 8 anything because there are all sorts of different sub-forums, 9 but let's say they looked at them, they downloaded it, that's Every time someone went to 10 gone. 11 of -- apparently 214 people out of 100,000 visitors merited 12 actual arrest. 13 That's worldwide. Let And a million images in the course So, Your Honor, this is where we are at this point, and I 14 submit this is our position. 15 Magistrate's Act. 16 They knowingly and deliberately violated Rule 41, according to 17 their own manuals that we submitted to you about the scope of 18 Rule 41, that manual for prosecutors, the letters that they 19 submitted to the rules committee, and all of the congressional 20 analysis of why the rule change was proposed. 21 violated Rule 41. 22 The government violated the It's jurisdictional. It's dispositive. They knowingly They searched unauthorized locations. The face of the warrant -- which is all we can rely on, 23 according to the Ninth Circuit rules -- says Eastern District 24 of Virginia, period. 25 close to a general warrant in the cyber age that we can really They got a global warrant that is as Teri Hendrix, RMR, CRR - Official Court Reporter 36 1 2 envision, 120 countries worldwide, 100,000 people. They were reckless at best about including a false 3 description of the site. 4 that the home page contained child pornography. 5 They utterly, utterly failed in their duty of candor. 6 process of all this, when we are looking at the totality of 7 the circumstances, they became, at least briefly, the world's 8 largest distributor of child pornography and re-victimized 9 countless children. 10 They told Magistrate Judge Buchanan It did not. In the Your Honor, if all that does not require some measure of 11 intervention and line drawing and deterrence by the courts in 12 order to vindicate fundamental principles of the Fourth 13 Amendment and due process in terms of the discovery issues and 14 candor and respect for the rule of law, then we've seriously 15 run the risk of the technology and the government unilaterally 16 overtaking some very core values and very core rights. 17 So I close here as I started. There's something of a 18 crossroads here, Your Honor, and obviously we hope you will 19 take the right direction on this because a lot is at stake. 20 Your Honor, I probably spoke more than you wanted me to, but I 21 will end simply by asking if you have any questions. 22 THE COURT: One kind of side issue, I guess, is 23 whether in your opinion the warrant is valid in the Eastern 24 District of Virginia. 25 MR. FIEMAN: Absolutely, in terms of what it says on Teri Hendrix, RMR, CRR - Official Court Reporter 37 1 the face of the warrant. 2 terms of probable cause and all the other Franks issues, but 3 in terms of the jurisdictional elements, yes, it is, and 4 that's why several of those cases in the Eastern District that 5 have come down really don't shed much light. 6 believe that's exactly what Judge Buchanan did, activating 7 computers anywhere located within my district and then go 8 build a case from there. 9 10 11 Now, there are additional issues in But yes, I Anything else, Your Honor? THE COURT: Well, I may have some more questions, but I will hold them for now. 12 MR. FIEMAN: 13 THE COURT: Thank you, Judge. It's a little ahead of the usual 14 schedule, but I think it's appropriate to take a break 15 probably before we hear from the government. 16 MR. FIEMAN: Your Honor, I just wanted to give you 17 that citation, if I may, for the statute that makes Rule 41 18 statutory. 19 and Rule 16 are statutory. 20 It's 28 U.S.C. 636. MR. GOLDSMITH: So both the Magistrate's Act Your Honor, before we take a break, I 21 would like to make just a few short comments on behalf of 22 Mr. Lesan. 23 THE COURT: 24 MR. GOLDSMITH: 25 Thank you. anything Mr. Fieman said. I will make an effort not to repeat I just have a few comments about Teri Hendrix, RMR, CRR - Official Court Reporter 38 1 the motion to exclude on the discovery issue related to what 2 the government's expert testified to yesterday. 3 analogies, Your Honor, that I think we can use to support our 4 position. 5 would be concerned with two things: 6 the house, and what happened after the burglar was there. 7 He used two One is that he argued that in a burglary case, you How the burglar got into The exploit is -- to analogize -- is how the burglar got 8 into the house. And in any burglary case, someone would have 9 to prove both of those things, how the burglar got in and then 10 what happened afterwards. 11 evidence regarding how the burglar got in, so to speak. 12 We are being deprived of the Going further, their expert analogized the exploit to a 13 key, something that sounds very simple, but he didn't examine 14 the exploit. 15 what that code is. 16 analogy: 17 battering ram? 18 of the computer? 19 relevant to the defense, particularly in the search context. 20 So I want the Court to think about that as well. 21 He agreed he did not see it, he does not know And he's coming up with an argumentative What if that exploit isn't a key, but it's a What if it's something that blows the door off We don't know that. And that's why it's In terms of the search issues themselves, just last week 22 on October 26th, the government sent us some discovery. 23 interestingly, there were a couple of memos where the FBI was 24 explaining what this investigation was, and I am going to read 25 just the beginning sentence from that -- those two memos, and Teri Hendrix, RMR, CRR - Official Court Reporter And 39 1 2 it's the same in each memo. It says: "Operation Pacifier is an international 3 investigation into a Tor hidden service known as Playpen and 4 its users." 5 "international." 6 application, the warrant face itself, do they use that word 7 "international." 8 know their investigation is international and they never once 9 use that word, the only word that we've heard already is The key word there, Your Honor, is Nowhere in any of the warrant documents, the How is a magistrate judge to know, when they 10 buried on page 29, paragraph 45, that the computers wherever 11 located. 12 particular line cannot expand the warrant. 13 expand the warrant. 14 interpreting warrants. 15 That's it. We know under Ninth Circuit law, that That line cannot Ninth Circuit law is very strict on It was not a magistrate error. Secondly, some of the additional information they gave -- 16 and I think the Court heard these numbers. 17 approximately 8,713 IP addresses derived during this 18 investigation. 19 week. 20 vast majority, something like 84 percent of the actual 21 materials they got through the NIT, were not on U.S. soil. 22 This was really a truly international warrant, and they never 23 used that word. 24 25 There were That's something we learned just late last Of those 8,713, 7,281 of them were foreign. So the Your Honor, it is very clear to me that the government was not engaging in their duty of candor with that magistrate. Teri Hendrix, RMR, CRR - Official Court Reporter 40 1 2 Those are the points I wish to make. Thank you. 3 THE COURT: Thank you. 4 MR. HAMOUDI: Thank you. On behalf of Mr. Lorente, 5 we join every argument made by defense counsel. We'd like to 6 highlight on the issue of the warrant. 7 know, Congress granted the Supreme Court authority to write 8 Rule 41 under the Rules Enabling Act. 9 Sections 2071 to 2077. Just to let the Court That's Title 28, And then the Supreme Court submitted 10 its proposed changes to the rule this past April 28, 2016, 11 under Title 28, Section 331, to Congress for approval. 12 But the proposed change for the rule was made in 13 September 2013, and the reason that it was made was for two 14 common investigative situations. 15 sufficiently describes the device to be searched but law 16 enforcement do not know the location of the target's device. 17 That raised particularity problems. 18 One was when the warrant The second was, where the investigation requires officials 19 to engage in surveillance of numerous computers in multiple 20 jurisdictions, and that's the issue with the Magistrate's Act 21 and the general warrants argument that we've been making. 22 What does that tell us? It tells us that they have known 23 the problem with these types of investigations since 24 September 2013. 25 Magistrate Judge Buchanan in around 2014 and they are trying And if they know that, then they are going to Teri Hendrix, RMR, CRR - Official Court Reporter 41 1 to get the search warrant, and they know that there's problems 2 with the rules, and yet they go ahead and conduct a search 3 that is now revealed to us to be an international search. 4 That's our issue. 5 At the end of the day, we believe that there is a 6 difference in opinion as to how one views the Fourth 7 Amendment. 8 road map on how to search and seize. 9 Amendment as a restraint, as a protection of privacy against The government views the Fourth Amendment as a We view the Fourth 10 unreasonable searches and seizures, and we are asking the 11 Court to embrace the latter view, not the former view. 12 On the issue of materiality, we are not required to 13 disclose what our defense is at trial. 14 because all we can do is sit quietly and make the government 15 carry their burden of proof. 16 said, he said on the stand, you don't need to look at the code 17 because it is redundant. 18 the FBI. 19 We don't have to, But what that witness yesterday He is getting contract grants from With all due respect, we have an obligation to attack that 20 line of testimony with our own experts with an opportunity to 21 view the evidence through our own expert's eyes and let a jury 22 decide whether or not it is redundant. 23 gets to decide that question. 24 25 We don't think that he We don't believe that these issues need to be resolved behind closed doors. We think 12 jurors need to sit and Teri Hendrix, RMR, CRR - Official Court Reporter 42 1 decide whether or not we can impeach the whole government's 2 investigation of this case, not to trust any evidence that 3 they present in this courtroom because of what occurred here. 4 We have that right. 5 THE COURT: That's it, Your Honor. Thank you, Mr. Hamoudi. 6 We'll taken 10 minutes. 7 (Morning recess.) 8 THE CLERK: All rise. 9 THE COURT: Please be seated. 10 Thank you. MR. HAMPTON: Court is again in session. Your Honor, Mr. Becker and I are going 11 to divide the presentation here, so I will address 12 suppression. 13 THE COURT: Just a second, I've got to get this. 14 MR. HAMPTON: So I will be addressing the suppression 15 and very, very briefly, the outrageous government conduct, and 16 Mr. Becker will be handling the discovery issue and the 17 exclusion motion. 18 THE COURT: 19 MR. HAMPTON: All right. Your Honor, I think an important 20 preliminary point is a theme that has emerged, and a theme 21 that I think the defense has pressed, is essentially the 22 government did a lot of bad things and all that adds up to 23 some kind of sanction, suppression, dismissal, whatever it may 24 be. 25 analytical framework that this Court has to look at this. I think it's important to remember, that's not the Teri Hendrix, RMR, CRR - Official Court Reporter 43 1 If the government did things that it's not permitted to 2 do, there are certain legal frameworks, certainly there are 3 remedies for those legal violations, but the two have to be 4 tied together. 5 In the context of outrageous government conduct, when I 6 said that reasonable minds could differ, I did not mean to 7 suggest that reasonable minds can differ about the need to 8 follow the law. 9 and the benefits of a particular operation. Reasonable minds can differ about the costs Reasonable minds 10 can differ about when balancing those costs and benefits, what 11 is the best way for the government to fulfill its mission to 12 stop horrific child sexual abuse and investigate crimes that, 13 even as defense counsel described yesterday, even assuming the 14 defendants here are simply mere viewers, cause profound 15 societal harm, and what is the best way for the government to 16 conduct those investigations when the defendants are operating 17 in the dark, anonymously and with impunity. 18 We can all talk about whether a given operation can be 19 done differently or better, but the question is did the 20 government act outrageously, did it act unfairly, did it 21 violate the due process clause in such a grossly offensive way 22 that the Court's conscience should be shocked. 23 Indeed, did the government act so heinously that it's 24 appropriate to allow criminals who have committed serious, 25 dangerous, violent offenses to go free. Because that is the Teri Hendrix, RMR, CRR - Official Court Reporter 44 1 position that the defense has taken, and that is an outcome 2 the government can't live with. 3 to go down that path and deny that motion. 4 So I would urge the Court not I will just flag one issue just as to 3509, that is -- and 5 I believe defense counsel cited it as 3503 -- I think it's 6 3509. 7 proceeding." 8 Again, as I said, this Court, other courts, other people may 9 disagree about the government's chosen investigative It begins with the language "in any criminal It is a statute related to criminal discovery. 10 technique, whether those benefits outweigh its costs, but it 11 was what the government thought was appropriate to deal with a 12 very challenging problem. 13 That turns me to suppression and the defense's Rule 41 14 arguments. 15 Magistrate Judge's Act, and the fact is their argument 16 collapses into one. 17 the Magistrate Judge's Act was violated. 18 Rule 41 violations, the Magistrate Judge's Act was not 19 violated, because after all Rule 41 would have permitted the 20 Magistrate Judge to issue that warrant. 21 I will note that the defense spoke a lot about the If there are Rule 41 violations, they say If there were no So the commentary there isn't really all that important. 22 The implications of what the rule means, I am going to talk 23 about that, but the issue is, did it violate Rule 41? 24 that, though, before I go into the details of the suppression 25 argument, I also want to address the discussion of the Teri Hendrix, RMR, CRR - Official Court Reporter Before 45 1 2 government's lack of candor. The notion that Magistrate Judge Buchanan could have read 3 that 29, 30-page affidavit, and that search warrant and not 4 understood exactly what the government intended to do is 5 preposterous. 6 pull up -- 7 8 The warrant face sheet by itself, which we can THE COURT: I have got the warrant here in front of me, if that's what you are going to refer to. 9 MR. HAMPTON: So if you go to Attachment A, the 10 government's intent and the authorization it sought is clear: 11 "The warrant authorizes the use of a network investigative 12 technique (NIT) to be deployed on the computer server 13 described below, obtaining information described in Attachment 14 B from the activating computers described below." 15 describes exactly those two terms. 16 A computer server. And then it It is a server operating on the Tor 17 child pornography network website, referred to herein as the 18 Target Website, identified by a specific URL, and located at a 19 government facility in the Eastern District of Virginia. 20 activating computers are those of any user or administrator 21 who logs into the Target Website by entering a username and 22 password. 23 The internet is a global network. The It is playing from that 24 face sheet, that attachment that the government had control of 25 a website accessible worldwide, and that it would deploy a NIT Teri Hendrix, RMR, CRR - Official Court Reporter 46 1 -- and that it's established that website in the Eastern 2 District of Virginia where that warrant was sought, and that 3 it would deploy a NIT to any computer whose user entered a 4 username and a password, who had entered the Eastern District 5 of Virginia and entered that website, they would be a target 6 of the NIT. 7 It's simply strange credulity to think that Magistrate 8 Judge Buchanan could not have understood exactly what the 9 government was doing. And the notion that the government was 10 not being candid or was somehow trying to hide the ball 11 presumes, of course, that the government had accepted that 12 this was not an appropriate theory, that this was not 13 something that the government can do. 14 But of course, the government has maintained throughout 15 that Rule 41(b)(4) -- among other provisions -- but 41(b)(4), 16 the tracking provision, is sufficiently analogous to this 17 situation to embrace these types of warrants. 18 argument that this Court did ultimately reject in Michaud, 19 although noted that it didn't strain credulity, that it had 20 some merit at least, but it is a position that at least seven 21 other courts within the Eastern District of Virginia and 22 elsewhere have embraced. 23 That is an That the government can be accused of bad faith or of not 24 being candid with a magistrate judge simply because it did not 25 agree with the narrow and very craft interpretation that the Teri Hendrix, RMR, CRR - Official Court Reporter 47 1 defense now wants to force upon it, is not fair and is not an 2 appropriate inference to draw. 3 As for the international flair, the international impact 4 of this investigation, it is true that the internet is a 5 global phenomenon. 6 have accessed -- and as it turns out, did access this website. 7 I will note that the report referenced by Mr. Goldsmith was 8 written after the investigation -- after the IP addresses had 9 come back and the government had been able to identify where 10 11 Computers from all over the world could those IP addresses were. But even the affidavit that was presented to Magistrate 12 Judge Buchanan noted that there were foreign language forums 13 on the Playpen website. 14 fact is the three defendants here were not in another country; 15 they were in Western Washington. 16 So it was certainly possible, but the It is not their role to assert whatever protections those 17 in another country might have, although I would note that 18 those individuals reached into the United States to trade and 19 to access child pornography. 20 may ultimately say about someone who is prosecuted in another 21 country, that's of no concern to the defense, and it's 22 certainly no justification for suppression here. 23 So regardless of what the law So that brings me to the challenges that are at issue 24 here. The government filed a detailed affidavit from a 25 veteran FBI officer explaining why this Tor website Playpen Teri Hendrix, RMR, CRR - Official Court Reporter 48 1 was hard to find. 2 simply stumble upon. 3 images of young girls that conceivably changed just before the 4 warrant was signed, but it wasn't changed to remove those 5 images of young girls in a sexual pose, it's just that there 6 was an image of one young girl in a sexual pose. 7 It was not something that someone would It explained that its home page had The affidavit talked about all of the things that he knew, 8 based on his training and experience, were suggestive of a 9 child pornography website, the focus on privacy and avoiding 10 detection. 11 the website which was devoted to the discussion of and the 12 trafficking in child pornography. 13 And then, of course, he detailed the content of There was ample probable cause to support a warrant to 14 search -- or to deploy NIT to any user who logged into that 15 website. 16 who had gone through the steps to find that website, create an 17 account and log in, was there for the purpose of the website, 18 to trade child pornography. There was absolutely a fair probability that anyone 19 Defendants posit a contrary view and they, of course, note 20 that there's another case, another website case, Gourde, where 21 probable cause was found. 22 cause was found there, it can't be found here. 23 there are different websites, but the same factors that 24 supported the finding in Gourde don't necessarily have to be 25 found here. And in their view, because probable And it's true, Teri Hendrix, RMR, CRR - Official Court Reporter 49 1 There are different facts and circumstances, facts and 2 circumstances that haven't been explained away. 3 that the defendant may disagree with an experienced FBI 4 agent's assessment of the meaning of this information isn't 5 relevant to the probable cause inquiry. 6 defendant's claims about information regarding IP addresses 7 and what was collected as a result of these NIT deployments, 8 the number of investigation, number of charges. 9 And the fact Nor are the When a search warrant is authorized to go into someone's 10 home to look for drugs, if there's probable cause to search 11 for drugs, there's probable cause whether or not the drugs 12 were actually found. 13 evaluate whether a search warrant exists, a search warrant was 14 valid. We don't look at what happened after to That's not how the inquiry works. 15 Now, as to Rule 41, the government has explained why it 16 believes that this warrant was appropriate under Rule 41, a 17 rule that is intended to be interpreted flexibly, to allow the 18 government to investigate crimes but also comply with the 19 Fourth Amendment. 20 courts, there's no question. Plainly, there's a disagreement among the 21 Seven courts have concluded that the government's theory 22 of this warrant as an appropriate tracking warrant is valid. 23 Many others have not, including this Court; however, those 24 same courts have concluded that is not a violation that's 25 appropriate for suppression. So the ultimate question here Teri Hendrix, RMR, CRR - Official Court Reporter 50 1 is, wherever the Court may come out again on the Rule 41 2 violation -- and we would urge the Court to reconsider how it 3 evaluated that question in light of the other decisions that 4 have been handed down that we've noted in the appendix -- the 5 question is, if there were a Rule 41 violation, is suppression 6 appropriate? 7 The defense's argument can be summed up as, of course 8 suppression is appropriate because Rule 41 was violated. 9 is their theory of prejudice, that is their theory that the 10 warrant was void ab initio. 11 deliberate error. 12 violated Rule 41 and we're done. 13 That That is their theory of It all comes back to well, the government The government approached a neutral magistrate judge with 14 a detailed affidavit establishing probable cause and 15 identified particular locations to be searched and particular 16 evidence to be seized. 17 noted as a fundamental policy of the Fourth Amendment. 18 the Court believes there's a violation and believes that 19 suppression is even a possible remedy, what the Court must 20 look to is what are the interests in suppressing evidence, 21 what are the benefits to suppression and the costs, and how do 22 they balance that. 23 That is what the Ninth Circuit has So if The Supreme Court has made absolutely clear that 24 suppression is a last resort. 25 That is true -- It is not a first impulse. Teri Hendrix, RMR, CRR - Official Court Reporter 51 1 THE COURT: Mr. Hampton, before you talk further 2 about suppression or not suppression, let me ask you about 3 Rule 41. 4 MR. HAMPTON: 5 THE COURT: Of course. What is the government's position on what 6 portion of that rule gave authority for this particular 7 warrant? 8 portion of that rule? 9 MR. HAMPTON: Is it the tracking device portion or some other Your Honor, I believe in our briefing 10 we identified two portions, and I think, though, that 11 certainly the stronger argument and the argument that I think 12 is the most logical fit is the tracking device, which is 13 (b)(4). 14 THE COURT: Now, what was the tracking device here? 15 MR. HAMPTON: The NIT, which was deployed in the 16 Eastern District of Virginia. 17 THE COURT: All right. Did the NIT have on it the 18 exact date and time that it was installed and the period 19 during which it was used, which is required also by Rule 41 on 20 a tracking device? 21 MR. HAMPTON: I apologize, Your Honor, that I don't 22 know the precise technology and know whether it had those 23 particular things -- yes, Your Honor, there was an exact date 24 and time when the NIT would have been deployed because at the 25 time the NIT was deployed, there was a log-in that prompted Teri Hendrix, RMR, CRR - Official Court Reporter 52 1 that. 2 THE COURT: 3 MR. HAMPTON: 4 THE COURT: 5 6 Where is that? Pardon? Where is this record of deploying a tracking device? MR. HAMPTON: It would be at least in the signature 7 report and probably other server records, but the signature 8 report which is the report that details a given user's 9 activity on Playpen. 10 THE COURT: A tracking device is defined in 18 U.S.C. 11 Section 3117 as "an electronic or mechanical device which 12 permits the tracking of the movement of a person or object." 13 We are not talking here about persons, but what object? 14 MR. HAMPTON: Well, the code that would have been 15 distributed when someone logged into the Playpen site, so that 16 content -- the NIT accompanied that content as it was deployed 17 on the server. 18 THE COURT: You see, here is what I am headed to or 19 what's of concern. 20 Section 3117 to track other than a person or object. 21 Rule 41, you are talking about information as property, and it 22 was used apparently here to track information. 23 A tracking device is not designed under But in You know, the language of the statutes and the rule seem 24 to indicate that a tracking device is something very different 25 than a computer NIT or some electronic communication between Teri Hendrix, RMR, CRR - Official Court Reporter 53 1 computers. 2 niche to hang their opinion on there, but I have a little 3 trouble with that. 4 tracking device rule and statute beyond its intended meaning. 5 6 7 I know other judges have decided that was a good It seems to me it's stretching the Do you have any comment on that? Now is the time to make it. MR. HAMPTON: I understand why the Court is 8 struggling with that, and I think it's accurate to say that 9 the rules and the statute may not have entirely caught up with 10 technology. However, the Supreme Court, other courts have 11 directed that Rule 41 itself is to be interpreted flexibly. 12 It is to be interpreted in a way that preferences warrants, 13 that preferences exactly what law enforcement did here, which 14 was identify a difficult problem, come up with a creative 15 technological solution, and then seek an appropriate 16 warrant -- 17 THE COURT: 18 How far can you go? 19 What limits the flexibility of Rule 41? MR. HAMPTON: Your Honor, I think it's tough to set 20 what a particular outer boundary is. Unfortunately, that has 21 to be done in an individual case. 22 that this Rule 41 is sufficiently flexible to accommodate this 23 particular type of technology, something that tracks software 24 code, that starts in a known location and then, as a result of 25 the defendants' -- or the own conduct, travels somewhere else. The government maintains Teri Hendrix, RMR, CRR - Official Court Reporter 54 1 THE COURT: Okay. 2 MR. HAMPTON: In the end, if the Court remains 3 unpersuaded that Rule 41 can accommodate this type of 4 technology or this type of investigative approach, the 5 question is should this evidence be suppressed? 6 I started with a balancing, but I think the beginning point 7 is, does the good faith exception apply? 8 9 I apologize, So even if there were some Rule 41 violation, was the government's reliance on this warrant reasonable such that 10 it's not appropriate to suppress? 11 reliance was reasonable. 12 with this very definition. There is difference of opinion 13 among the federal courts. It is hard to understand how the 14 agent who sought this warrant and the executing officers could 15 be expected to have firmly resolved something that even the 16 courts are struggling to figure out. 17 And the government's The fact is, courts are struggling It's no answer to say the Department of Justice has 18 advocated further clarification to the rules. The fact that 19 the government and law enforcement agencies recognize that 20 technology and the letter of the rule have not married up as 21 yet is not evidence of bad faith or unreasonableness for the 22 government to do what it believes the law permits, but also 23 advocate for clarity. 24 As I said, the Supreme Court has made abundantly clear 25 that suppression is not where we start, but it is where we Teri Hendrix, RMR, CRR - Official Court Reporter 55 1 end. 2 make no sense for there to be a different approach to a 3 violation of the rules. 4 examine the benefits of suppression, that is deterrence of 5 government misconduct, and balance that against the tremendous 6 social cost of suppression. 7 That is true in the constitutional context, and it would THE COURT: The Court, to suppress here, must Arguably, to do that you are throwing out 8 Rule 41 and the Magistrate's Act and going right back to the 9 Constitution and saying well, this is a reasonable search, 10 11 12 13 under the Constitution. MR. HAMPTON: I am sorry, Your Honor. There is a beeping sound. Well, Your Honor, I think it's not so much throwing it out 14 as we are in a situation where there is a warrant that has 15 been issued and a finding of a rule violation on what I think 16 can only be described as a close call at best. 17 certainly the government thinks there was no violation, but 18 even if there were, it's a close call, and so we have to 19 decide whether suppression is the appropriate remedy here. 20 I mean, It wouldn't make a lot of sense if, in other contexts 21 where there has been suppression, where a warrant fails some 22 constitutional defect, it wouldn't make sense for suppression 23 to be automatic there when here, there was a warrant supported 24 by probable cause presented to a neutral and detached 25 magistrate judge that identified with particularity the things Teri Hendrix, RMR, CRR - Official Court Reporter 56 1 2 to be seized and the locations to be searched. To be sure, it was potentially a large number of 3 locations, and that's something that the defense has raised a 4 lot of concern about, but there's no upward boundary. 5 there were, how would it be chosen? 6 thousand, ten? 7 The question is: 8 And there was. 9 And if A thousand, five That's not really a meaningful discussion. Was there probable cause or was there not? The costs of suppression here are tremendous. Defendants 10 who committed horrific crimes could well be let go and go 11 free, and the interest that would vindicate is at most a venue 12 revision. 13 What government misconduct was there? 14 the Fourth Amendment -- what is a fundamental policy of the 15 Fourth Amendment. It certainly wouldn't deter government misconduct. The government did what 16 It sought a search warrant from a magistrate judge, a 17 magistrate judge in the district that it believed had the most 18 logical and most appropriate connection to the crimes being 19 investigated and the particular investigative technique. 20 the government in hindsight got that wrong, how will 21 suppression deter it from getting that wrong again? 22 It is a close call. It is a complicated issue. If And the 23 answer can't be that the government just stops investigating 24 certain crimes because there are questions and it has to make 25 difficult calls about how to go forward. On balance here, the Teri Hendrix, RMR, CRR - Official Court Reporter 57 1 government did what was necessary to protect these defendants' 2 privacy interests because it sought a warrant. 3 And even if the Court believes the government should have 4 sought a warrant somewhere else or that this particular 5 district was not authorized to issue that warrant, suppression 6 is certainly not going to further any constitutional interest 7 and will further no deterrence interest. 8 9 I would urge the Court to deny the defendant's motion to suppress. 10 THE COURT: 11 MR. BECKER: Thank you, Mr. Hampton. Thank you, Your Honor. Good morning. 12 will move to the issue of the defense motion to exclude. 13 also happy to address any questions the Court has on any of 14 the matters that are raised. 15 I I am Your Honor, you started out yesterday with a premise, and 16 that premise was that you believe that the notion is that 17 these cases are in fact separate from the Michaud case and 18 need to be taken up on their own merits. 19 appropriate and certainly a correct view of the Court. 20 want to start with just some key differences between this case 21 and this record and the Michaud case. 22 We think that's So I For one, there's been more information that was disclosed 23 to the defendants in these cases. In particular, they have 24 gotten the software that generated unique identifiers related 25 to the NIT and can analyze that. We are also proceeding now Teri Hendrix, RMR, CRR - Official Court Reporter 58 1 under the Classified Information Procedures Act. 2 significant. 3 nondisclosure the government has not provided is heightened, 4 and that does need to factor into the sort of balancing that 5 Your Honor is ultimately going to undertake between public 6 interests and the defendants' particular interests in these 7 cases. 8 9 That is It means that the public's interest in Your Honor has heard testimony from Professor Brian Levine, the only testimony that Your Honor has actually had in 10 these cases, the only person who is an expert who you've had 11 the opportunity to hear from, to assess credibility, and who's 12 been cross-examined. 13 Professor Levine's testimony certainly, we submit, Your 14 Honor, makes it eminently clear that the additional 15 information, the narrow band now of additional information 16 that the defendant seeks, would not actually further or be 17 helpful in terms of evaluating or bringing their defenses, and 18 I will talk about that in more detail. 19 All of these defendants, Your Honor -- and here's a 20 critical point that I really want to engage with the Court 21 about -- all of these three defendants are charged only based 22 on information that was ultimately found on their computers 23 after their home was searched. 24 charged with accessing Playpen. 25 charged with receiving child pornography from Playpen. None of these defendants are None of these defendants are Teri Hendrix, RMR, CRR - Official Court Reporter That 59 1 is a critical difference, and it's a critical point for this 2 Court. 3 It's so critical because it means that the NIT is not 4 evidence in this case. 5 government's case-in-chief. 6 will it be used to prove whether any of these three defendants 7 were guilty of possessing or receiving child pornography that 8 was found on their computers. 9 The NIT will not be a part of the The NIT is not necessary, nor That's critical because that makes this case different 10 than Budziak. 11 the technology that was used, the peer-to-peer technology that 12 the government used, was central to the government's case 13 against the defendants. 14 could prove that those defendants had distributed child 15 pornography. 16 not using the NIT as trial evidence. 17 the defense request for the information and their ability to 18 mount the defense under that light and from that perspective. 19 In Budziak, which the defense has talked about, It was the only way the government That is vastly different than this case. We are So we have to analyze Finally, Your Honor, all of these defendants have either 20 confessed to or made statements to others about their personal 21 involvement with child pornography. 22 factor from the factual scenario in Michaud. 23 with individuals who made admissions to their child 24 pornography-related activity. 25 That is a distinguishing We are dealing So with that said, Your Honor, CIPA provides a framework Teri Hendrix, RMR, CRR - Official Court Reporter 60 1 for this Court to analyze the issue between the narrow band of 2 information that has not been provided to the defense, and I 3 say that, Your Honor, because I think the defense has tried to 4 make so much more of how much information that is, than is 5 really accurate. 6 The NIT conducted a search of a defendant's computer, and 7 that search provided particular information to the government, 8 an IP address, a MAC address, and a little bit more 9 information about that computer. All of that information has 10 been provided to the defense. 11 conducted that search have been provided to the defense. 12 data stream, packet capture that shows that data going from 13 the defendant's computer to the government's computer has been 14 given to the defense. 15 all. 16 The computer instructions that That's the NIT search. A They have it They have all the ingredients necessary for their six or 17 600 experts that they want to employ to do the sort of 18 examination and analysis they want to do, to learn about the 19 government's investigative technique. 20 Your Honor -- beyond that, they have the unique identifier 21 generation code, they can analyze it, they can determine as we 22 have that it works exactly as planned and as advertised. 23 So it's in that light, The only piece that the government has not provided is the 24 exploit piece. It is the means of access into a computer. 25 That term, that understanding, Your Honor, is critical. Teri Hendrix, RMR, CRR - Official Court Reporter What 61 1 we are talking about here is the means of access to get the 2 code we have given them that ran the search onto their 3 computers, and that's all. 4 That's all we are talking about. So there's a three-step process that CIPA mandates. One, 5 is that information relevant and helpful? 6 information properly classified? 7 rulings related to that. 8 the sort of the interests that exist between the nondisclosure 9 of that information and the necessity of it in light of all 10 11 Two, is the Your Honor has already made And the third part is a balancing of these factors. Under CIPA, there's an important factor, an important 12 piece or way that the Court can accommodate these interests, 13 and that is the option of allowing for a substitution of 14 information or a stipulation, rather than the classified 15 information at issue. 16 Honor should resolve these sorts of issues, rather than taking 17 the extraordinary remedy of essentially suppressing all of the 18 government's evidence against all these defendants. 19 That's ultimately how we believe Your Your Honor, first, we believe that the record supports our 20 argument that the exploit-related evidence is not in fact -- 21 and would not be relevant and helpful, either for the defense 22 to mount a defense or to evaluate it. 23 ourselves to talking in generalities about how the defense 24 wants to know how did the government technology work, what did 25 the government do in general terms, and how did they do it, Now, if we limit Teri Hendrix, RMR, CRR - Official Court Reporter 62 1 it's not going to get us very far because they can always come 2 up with some reason of curiosity as to why they think they are 3 entitled to review information. 4 Curiosity is not the same as materiality. Materiality has 5 to be tied to some particular defense. 6 this more concretely, when you dig into what's the information 7 they don't have and what would they actually be able to do if 8 they got it, you can see that it's neither relevant nor 9 helpful, and here's why. 10 And when you look at Knowing the method of access of someone into a computer 11 does not tell you what happened after it was accessed. 12 what happened after the government accessed the defendant's 13 computers, was that it ran the NIT code, the payload, the 14 information that we have given them, and it collected the 15 information that was authorized and we've given them that 16 information as well. 17 Here, Knowing the method of access does not tell you what 18 happened once you were on there, just as knowing whether 19 someone who ultimately took information from a home went in 20 through a door or a window doesn't tell you what they did once 21 they were inside. 22 Again, we've got to look at it even more carefully, Judge, 23 because there's a couple of options here in terms of what 24 would you ultimately -- what would you ultimately understand 25 by reviewing the method of access, right. So one is, you Teri Hendrix, RMR, CRR - Official Court Reporter 63 1 might understand that the method of access did not make any 2 permanent changes to the user's security settings, right, that 3 the method of access didn't break a lock or break a window. 4 If that's what you find out, then okay. That means, one, 5 it's possible that somebody who knew that method of access, 6 other than the government, could still have used that same 7 method of access and done something inside their house, right? 8 So that's one option. 9 figure out oh, okay, it's a window, and what does that tell You review the method of access and 10 you? 11 that someone who knew the same method of access could also 12 have used that method of access to do something inside the 13 house, to run code on someone's computer. 14 possibility right now, that would remain a possibility after 15 any analysis, so that gets you nowhere. 16 Not very much, because as of right now it is possible That is a Option two, you review the method of access and determine 17 okay, this did in fact or could have made some changes to a 18 user's computer setting. 19 getting in could damage a lock or it could damage a window. 20 Okay, so you still have to look inside the house and figure 21 out -- so now you know all right, it's possible that someone 22 who knew this method could have gotten in and damaged 23 something. 24 something when they got in. 25 All right, it turns out this way of You might also know okay, the government damaged That means that someone with knowledge of this way of Teri Hendrix, RMR, CRR - Official Court Reporter 64 1 getting in, or someone who came in later, could have done 2 something inside the house. 3 what happened within the house, no matter how someone entered, 4 no matter what the method of entry was, the possibilities 5 remain that somebody could have gotten in that way or some 6 other way. 7 Either way, you have to determine Knowing what the method is or even whether the method made 8 some changes or didn't, just doesn't tell you whether or not 9 somebody else got in and made changes, whether somebody else 10 got in and took something out, whether somebody else got in 11 and planted something there. 12 discovery is not material, and it's not helpful because the 13 possibilities will always remain. 14 That's why this whole realm of It will always be possible that somebody knew of the same 15 exploit. 16 gone in and delivered malware through any means of 17 vulnerabilities. 18 internet and malware. 19 to say well, our experts can't reverse engineer what happened. 20 Well, Judge, that's -- it's a curiosity interest. 21 interest that's tied to some particular defense. 22 It will always be possible that somebody could have That's just a reality of computing and the The defense's answer to this concept is It's not an They can evaluate whether or not they want to raise a 23 malware defense based on their experts, based on their 24 examination of their computers. 25 determine, is there malware on here? Look at the computers and What are the security Teri Hendrix, RMR, CRR - Official Court Reporter 65 1 settings? 2 tell your experts could possibly have been done on a computer, 3 and then argue and evaluate your defense from that. 4 What would those security settings on the computer You'd have to go through all of those steps whether or not 5 you knew or ever looked at the method of access, because it 6 doesn't matter. 7 the evidence, how did it get there, what can you show from the 8 settings of that computer to be able to evaluate or assert we 9 think somebody else put it here, or we think it could be the 10 case that somebody else put it here, or the government can't 11 prove that I put it here. 12 The key is what's on the computers, what's All of those things can be done by looking at the 13 computers, looking at the settings, evaluating that 14 information, and you'd have to do that regardless of whatever 15 the government's method of access to get the NIT code there 16 was. 17 So there's still a balancing for the Court to strike here, 18 Your Honor, and we have a proposal about how the Court can do 19 that without having to go the extreme route of suppressing all 20 or excluding all of the government's evidence, and that's -- 21 one of the things the Court can do is substitute a stipulation 22 or make a substitution. 23 So here's our proposal that we think would adequately 24 allow the defense to put forth whatever defenses that they 25 want to ultimately go forward with. The government used an Teri Hendrix, RMR, CRR - Official Court Reporter 66 1 exploit to deliver a NIT to the defendants' computers. 2 government has not disclosed that exploit to defense for 3 review. 4 permanent changes to the security settings of a user's 5 computer which could allow someone to run commands on that 6 computer without the user's knowledge. 7 We will stipulate to that. 8 ultimately the defendants their best case or whatever case 9 they wish to make. 10 The It is possible that an exploit can make temporary or We will agree to that. And here's the -- that gives We are unable to counter the assertions the defense would 11 make about the possibility of alterations to security 12 settings, about the possibilities that the exploit could have 13 opened some hole that somebody else used to run commands. 14 can't counter it because the exploit is not available to us to 15 use as evidence. 16 those possibilities, and the defense can use that to mount 17 whatever defense they want. 18 put the exploit into evidence because of its status. 19 We We'd be stuck with that stipulation and We have no trump card. We can't In this scenario, if that's the relief the Court would 20 grant, as we ask Your Honor to do, we won't do. The Court can 21 order -- the Court can prohibit and exclude that evidence. 22 The Court can prohibit us from putting that on. 23 that we wouldn't be able to again because of its status 24 anyway. 25 want on their computers, find whatever malware or information I tell you So the defense is free to run whatever exams they Teri Hendrix, RMR, CRR - Official Court Reporter 67 1 2 or evidence they can and put forth those defenses. So ultimately, Judge, we think that in view of the drastic 3 nature of effectively a sanction or the excluding of all of 4 the evidence that's tied into this case, this is a better 5 solution that strikes a better and appropriate balance among 6 all the interests here. 7 There's huge social costs to this community of the Court 8 excluding effectively all the government's evidence against 9 three individuals who are charged with some serious crimes. 10 We've heard over and over the crimes that they are charged 11 with, minimized by the defense in asserting that these are 12 individuals who are somehow low-level offenders who don't pose 13 any danger to that community -- to this community. 14 categorically wrong, Your Honor. 15 dealing with Mr. Tippens -- 16 THE COURT: It's just I am sorry, but we are You know, you talk about huge social 17 costs. 18 too, if this amounts to that. 19 the Constitution in order to arrest somebody because they need 20 to be arrested. 21 the details of what we are talking about here. 22 There's huge social costs in constitutional violations So you know, you can't ignore So that's a balance. MR. BECKER: It's a balance beyond We certainly agree, Your Honor. That is 23 absolutely the sort of balancing Your Honor has to undertake. 24 My point is that the defense continues to minimize, frankly, 25 the importance, the significance of these defendants because Teri Hendrix, RMR, CRR - Official Court Reporter 68 1 of the charges they face, that they are only watchers or 2 however they want to call it. 3 interests that are at stake for this community and that need 4 to be balanced. 5 That doesn't capture the We deal with that as part of the facts here. So when law 6 enforcement goes into Mr. Tippens's home at the time they 7 search his home, he has on a loop playing on a big screen 8 television in his home video of a toddler-aged child being 9 raped. That's a community concern. That's not someone who is 10 not a series offender, who is not worthy of prosecution, who 11 is someone that this community shouldn't be concerned about. 12 When law enforcement goes into Mr. Lesan's home, they find 13 cameras in the bathroom of the home designed to catch 14 occupants, including children, in intimate situations. 15 When law enforcement searches Mr. Lorente's home, they 16 find a blowup doll with a child's face taped to it within that 17 home, and there's evidence that he was filming other young 18 children in his neighborhood. 19 So -- and I say that -- these are allegations. 20 Ultimately, these are issues for trial, but we can't lose 21 sight of the fact that these are not offenses that involve 22 just pictures. 23 and defendants who pose -- in a community, our community, this 24 community -- who pose a danger. 25 Court obviously is and should be concerned about. These are offenses that involve individuals That's an interest that this Teri Hendrix, RMR, CRR - Official Court Reporter 69 1 So with that, Your Honor, we certainly understand there 2 are tremendous interests that need to be balanced here. 3 is -- we understand it's a challenging job for Your Honor and 4 for the Court. 5 struck here on both of these ends, on the issues of the 6 suppression for the warrant as well as the issue of whether to 7 exclude evidence, should not be struck by throwing out all -- 8 effectively all of the government's evidence in these cases. 9 We think that something less than that would accommodate the 10 privacy interests, the ability to ultimately raise defenses. 11 I am happy to address any questions that Your Honor has. 12 13 14 That We believe that the appropriate balance to be THE COURT: Thank you, Mr. Becker. Finish yours in 10 minutes. MR. FIEMAN: Easy. Let me go through this quickly. 15 One, in regard to the tracking device, if that's what they are 16 hanging their hat on, that's fine. 17 himself told the Court -- and I just wrote this down -- the 18 NIT conducted searches of defendants' computers. 19 computers are in Washington. 20 installed within the district in which it is authorized. 21 is not tracking. 22 information, it actually captured MAC addresses, IP addresses, 23 and all sorts of data from the computers. 24 and it was not within the district. 25 does not apply. Two things: Mr. Becker The The tracking device has to be This is seizing. This It didn't just track So it was a search, The tracking provision Teri Hendrix, RMR, CRR - Official Court Reporter 70 1 Now, you asked, Your Honor, a very interesting question. 2 You asked where the installation records for the tracking 3 devices are. 4 the server component. 5 been asking to look at from the beginning because that's 6 essential to the chain of evidence, chain of custody, and that 7 goes to a very important Fourth Amendment issue, exactly when 8 and how and where this was installed. 9 server component. 10 Well, where they are saved, Your Honor, is on That is one of the components we've All that data is in the The government will not disclose it. In regard to probable cause, Mr. Hampton was talking a lot The reason that the Gourde case, and all the 11 about content. 12 other cases that, Your Honor, cited in the government's memo, 13 if you look at Document 74, our suppression motion at 21 to 14 22, we talk about cases like Martin, Fasso. 15 from the government's pleadings. 16 Those are all All those cases said is you cannot base probable cause on 17 merely accessing an illegal website, all of it. 18 them said that you have to show that there was ongoing 19 membership and opportunity to view the content or other 20 indications that somebody didn't just look at the site and 21 walk away. 22 Every one of All of these NITs were deployed at the home page. In the 23 Fasso case, cited by the government, in fact said there was no 24 probable cause when the application failed to allege that the 25 defendant had not only entered the site, but likely Teri Hendrix, RMR, CRR - Official Court Reporter 71 1 downloaded. 2 Your Honor, in regard to 3509(m), that provision in terms 3 of custody and control of child pornography provides 4 explicitly in any criminal proceeding, and it includes 5 investigations, and then a subdivision relates to discovery. 6 Now, in terms of the good faith exception, Your Honor, we 7 cited case law that clearly states that you cannot even invoke 8 the good faith exception when the government itself is 9 responsible for the errors that the magistrate relied upon. 10 You only get to invoke good faith if the warrant is issued and 11 it's a reasonable warrant and the government relied on it, but 12 when they are responsible for omissions or errors in terms of 13 the application, they cannot even invoke it. 14 Now let's talk about the exclusion issues, Your Honor. 15 Mr. Becker proposed a stipulation to resolve this. 16 Soto-Zuniga talks not just about at the time of the trial, it 17 talks about pretrial motions, Fourth Amendment issues, 18 suppression issues. 19 government is prepared to stipulate that the NIT exceeded the 20 scope of the warrant by seizing unauthorized data from the 21 clients' computers, we will entertain that stipulation. 22 unless we get that, we will never know. 23 So let me propose this. Well, If the Let me talk about the exploit very briefly. 24 key. 25 him -- I put up Professor Miller's declaration. But It is not a Please go back to Professor Levine's testimony. I asked The exploit Teri Hendrix, RMR, CRR - Official Court Reporter 72 1 doesn't just unlock a door, it can change settings, it can 2 alter data, it can take down the security settings 3 permanently. 4 not a key. 5 also leave the door open, you may damage the furniture, you 6 may plant evidence behind. 7 exploit. 8 the government trying to carve it out in that way is just not 9 consistent with any of the experts, including their own. 10 So I challenged him specifically on that. It is It is simply -- when you are breaking in, you may All those things happen from the So I don't want to get caught in the semantics, but Now, Your Honor, Mr. Becker finally spent a fair amount of 11 time talking about additional evidence that shows -- evidence 12 unrelated to the NIT that may show possession, statements from 13 the clients. 14 submit all that evidence is fruit of the NIT search and, to 15 the extent that the government shows that it's not, they are 16 entitled to proceed on that untainted evidence. Well, two things about that. First of all, we 17 Finally, Your Honor, if we exclude all fruits of the NIT 18 and simply what's left is evidence that is untainted, we can 19 go to trial on that. 20 simply cannot prove receipt without any data disclosed to us 21 in terms of how those particular images ended up on the 22 computer. 23 There might be a possession count. They For all we know, it was a third party attack. So with the proposed stipulation that I have made, and 24 with excising all the fruits of the NIT evidence, if the 25 government has evidence left over that they are prepared to Teri Hendrix, RMR, CRR - Official Court Reporter 73 1 show established possession then yes, we can go to trial on 2 that, Your Honor. 3 Thank you. 4 THE COURT: Any other comments? 5 MR. HAMOUDI: 6 THE COURT: Nothing else, Your Honor. Thank you. Well, there is a lot of information here. 7 Courts all over the country are going all sorts of different 8 directions. 9 decisions I have to make along the way to get to conclusions. 10 We'll have to write on this, and there are many We'll work on it and try and get it to you quickly. I 11 have got trials backed up here now so I am not sure just when 12 we'll have the kind of time we need to finish this, but we 13 don't sit on things for long. 14 Okay. Well, I don't think I have any other questions. 15 You've given me all the information that a guy can want in 16 these situations. 17 I think it comes out to about 48 years now, and there's some 18 cases that come along that make you feel inadequate, and this 19 is one of them. You know, I have been at this for -- gosh, So we'll do the best we can with it. 20 MR. FIEMAN: 21 MR. HAMOUDI: 22 MR. BECKER: 23 Thank you, Your Honor. Thank you, Your Honor. Thank you, Your Honor. (Proceedings concluded at 11:56 a.m.) 24 25 Teri Hendrix, RMR, CRR - Official Court Reporter 74 1 2 3 4 * 5 * * * * C E R T I F I C A T E 6 7 8 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 9 10 /S/ Teri Hendrix __________ 11 Teri Hendrix, Court Reporter November 21, 2016 Date 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Teri Hendrix, RMR, CRR - Official Court Reporter