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United States v. Cookson

United States District Court, D. Kansas

November 22, 2017




         The instant prosecution is the result of an FBI investigation into Playpen, a website that facilitated the distribution of child pornography. Through a series of events, the FBI learned that defendant accessed Playpen from his home, and the government charged defendant with two counts of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Presently before the court is defendant's motion to dismiss (Dkt. 14) alleging that the government committed outrageous conduct. Defendant also moves to suppress all evidence derived from the search of his home computer, subsequent search of his residence, and statements made to the FBI (Dkt. 13). Defendant further moves for discovery (Dkt. 15). For the reasons stated below, defendant's motions to dismiss and suppress evidence are denied. Defendant's motion for discovery is denied without prejudice.

         I. Background [1]

         Playpen operated on the “The Onion Router” or “Tor” network, which provides more anonymity to its users than the regular Internet. The Tor was developed by the U.S. Naval Research Laboratory and is now accessible to the general public. Tor users must download special software that lets them access the network. When a user accesses the Tor, communications from that user are routed through a system of network computers that are run by volunteers around the world. When a user connects to a website, the only Internet Protocol (“IP”) address that the website “sees” is the IP address of the last computer through which the user's communications were routed. This final relay is called an exit node. Because there is no practical way to trace a user's communications from the exit node back to the user's computer, Tor users are effectively anonymous to the websites they visit.

         The Tor also provides anonymity to the individuals who run websites or forums on it. Websites may be set up on the Tor as “hidden services” that are only accessed through the Tor. The IP address is replaced with a Tor-based address, which consists of a series of alphanumeric characters followed by “.onion.” There is no way to look up the IP address of the computer hosting a hidden service.

         Tor users cannot simply perform a search to find a hidden service that may interest the user. Instead, a user must know the Tor-based address of the hidden service. As a result, a user cannot simply stumble onto a hidden service. The user may obtain the address from postings on the Internet or by communications with other Tor users. One hidden service may also link to another.

         Playpen was a hidden service contained on the Tor, and it had been linked to by another hidden service that was dedicated to child pornography. In December 2014, a foreign law enforcement agency informed the FBI that it suspected a United States-based IP address belonged to Playpen. In January 2015, after obtaining a search warrant, the FBI seized the IP address and copied the contents of the website. On February 19, 2015, the FBI arrested the individual suspected of administering Playpen.

         The FBI seized control of Playpen, however, it could not easily identify Playpen users. Thus, the FBI obtained a warrant from an E.D. Va. magistrate judge allowing them to use a network investigative technique (“NIT”) to locate the administrators and users of Playpen-including installing software onto the FBI's Playpen server in Virginia. The NIT installed itself as soon as a user logged into Playpen and reached the landing page; installation did not require any confirmed downloads of child pornography. Once installed, the NIT would search the user's computer for identifying information, such as the IP address, and transmit this information back to the FBI via the Playpen server located in the E.D. Va.

         The FBI operated Playpen with the NIT from approximately February 20, 2015, to March 4, 2015. On February 22, 2015, a visitor named “shishkabobs” logged into Playpen, and the NIT was installed on shishkabobs's computer.

         On March 26, 2015, the FBI used some of the data it had collected from shishkabobs's computer to obtain an administrative subpoena for Southern Kansas Telephone Company, Inc. to identify the address. The telephone company provided the FBI with defendant's address in Howard, Kansas. Defendant's brother was the subscriber name on the internet account.[2]

         On June 17, 2015, Judge Gale authorized a warrant for the FBI to search defendant's residence. Two days later, the FBI executed the search warrant and interviewed defendant at the county jail. Defendant provided a Mirandized confession regarding his use of Playpen and child pornography found on his devices. Approximately two years later, defendant was indicted on two counts of possession of child pornography.

         II. Outrageous Conduct

         Defendant asserts that the government acted outrageously when it operated Playpen without filters or limitations, thereby aiding and abetting at least 100, 000 users in posting, viewing, and sharing illegal pictures and videos. Defendant is not arguing entrapment, but that the government's conduct was so inexcusable that it can only be described as outrageous.

         A defendant may challenge the government's conduct during an investigation when it is sufficiently outrageous. The outrageous conduct defense is predicated on the Due Process Clause of the Fifth Amendment to the United States Constitution. If the government's conduct is deemed “outrageous, ” then it is not allowed to prosecute offenses developed through that conduct. The defense of outrageous conduct is distinct from the defense of entrapment, which looks at the defendant's state of mind to determine whether he was predisposed to commit the crime for which he is ...

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