Michaud/Playpen Hearing Transcript

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
IN TACOMA
__________________________________________________________
UNITED STATES OF AMERICA,
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Plaintiff,
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No. CR15-5351RBJ
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vs.
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JAY MICHAUD,
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Defendant.
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__________________________________________________________
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MOTIONS HEARING
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__________________________________________________________
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BEFORE THE HONORABLE ROBERT J. BRYAN

UNITED STATES DISTRICT COURT JUDGE
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January 22, 2016
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APPEARANCES:
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Keith Becker
U.S. Department of Justice Criminal Division
Matthew Hampton
Assistant United States Attorney
Representing the Plaintiff
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Colin Fieman
Linda Sullivan
Federal Public Defender's Office
Representing the Defendant
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Barry L. Fanning, RMR, CRR - Official Court Reporter

Suite 17205 - 700 Stewart St. - Seattle, WA 98101
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EXAMINATION INDEX
EXAMINATION OF
DANIEL ALFIN
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CHRIS SOGHOIAN
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PAGE
54
DIRECT EXAMINATION
By Mr. Becker
CROSS-EXAMINATION
By Mr. Fieman
REDIRECT EXAMINATION
By Mr. Becker
RECROSS-EXAMINATION
By Mr. Fieman
DIRECT EXAMINATION
By Mr. Fieman
CROSS-EXAMINATION
By Mr. Becker
By Mr. Fieman
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89
94
99
120
128
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EXHIBITS ADMITTED
12A
12B
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15B
13B
13A
1 - 9
A15 & A16
EXHIBIT INDEX
PAGE
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58
62
63
71
91
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09:31:34AM
09:31:42AM
Cause No. 15-5351, United States versus Jay Michaud, who
09:31:46AM
is present in court with his attorneys, Mr. Fieman and
09:31:51AM
Ms. Sullivan.
09:32:03AM
MR. BECKER:
09:32:04AM
THE COURT:
09:32:06AM
MR. HAMILTON:
09:32:18AM
MR. BECKER:
09:32:26AM
09:32:26AM 10
THE COURT:
Good morning.
This is
For the government, Mr. Becker.

Good morning, your Honor.
And Mr. Hamilton.
Good morning.
At counsel table is FBI Special Agent
Daniel Alfin.
THE COURT:
Good morning.
I put out a little
09:32:38AM 11
agenda for this proceeding.
09:32:41AM 12
is arraignment on the superseding indictment.
09:32:46AM 13
proceed with that first.
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09:32:59AM 15
So let's
Mr. Michaud, have you received a copy of the

superseding indictment?
09:33:00AM 16
THE DEFENDANT:
09:33:01AM 17
THE COURT:
09:33:03AM 18
The first thing on the agenda
I have seen it, your Honor.
And you have had a chance to read that
and discuss it with your lawyers?
09:33:06AM 19
THE DEFENDANT:
09:33:07AM 20
THE COURT:
Yes, your Honor.
I think in prior proceedings we have
09:33:11AM 21
determined that your name is Jay Michaud, as it appears in
09:33:15AM 22
the caption of these documents; is that correct?
09:33:19AM 23
THE DEFENDANT:
09:33:20AM 24
THE COURT:
09:33:23AM 25
Yes, your Honor.
I think we also determined that you
can read and write English with no difficulty, and have

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09:33:29AM
considerable secondary education, right?
09:33:32AM
THE DEFENDANT:
09:33:33AM
THE COURT:
09:33:36AM
right to remain silent, and are not required to make any
09:33:40AM
statements about these matters?
09:33:41AM
THE DEFENDANT:
09:33:42AM
THE COURT:
09:33:45AM
right to counsel.
09:33:51AM
persons of Mr. Fieman and Ms. Sullivan.
Yes, your Honor.
And you understand that you have the
I do, your Honor.
You also understand that you have the

And that has been provided in the
You have
09:33:57AM 10
conferred with them about this matter, the superseding
09:34:00AM 11
indictment?
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THE DEFENDANT:
09:34:01AM 13
THE COURT:
Yes, your Honor.
And you understand that this
09:34:03AM 14
indictment supersedes and takes the place of the original
09:34:11AM 15
indictment filed in the case?
09:34:13AM 16
THE DEFENDANT:
09:34:15AM 17
THE COURT:
Do you understand that?
I do now, your Honor.
Now, you have the right to have the
09:34:18AM 18
indictment read to you here in open court to be sure that
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you understand it.
09:34:25AM 20
read to you?
Do you wish to have the indictment
09:34:26AM 21
THE DEFENDANT:
09:34:35AM 22
THE COURT:
09:34:45AM 23
No, your Honor.
I believe the first two counts are the
same as in the original indictment; is that correct?
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MR. HAMILTON:
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THE COURT:
That's correct, your Honor.
You were advised of the penalties

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possible in the event of conviction of those two charges?
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THE DEFENDANT:
09:35:01AM
THE COURT:
09:35:04AM
Count 3, and is a new charge, what is the maximum penalty
09:35:09AM
that Mr. Michaud is facing for that charge?
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09:35:22AM
minimum term of imprisonment of five years, and up to 20
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years of imprisonment; a term of supervision following
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release from prison of not less than five years, and up to
Yes, your Honor.
As to the third charge, which is
MR. HAMILTON:
Your Honor, the defendant faces a
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life; up to a $250,000 fine; a $100 mandatory special
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assessment; and a $5,000 penalty assessment if the court
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finds the defendant is not indigent.
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THE COURT:
Do you understand those possible
penalties, Mr. Michaud?
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THE DEFENDANT:
09:35:56AM 16
THE COURT:
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Yes, your Honor.
And, counsel, are you satisfied that
Mr. Michaud is ready to enter a plea to these charges?
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MS. SULLIVAN:
09:36:06AM 19
THE COURT:
We are, your Honor.
Mr. Michaud, in Count 1 you are
09:36:09AM 20
charged with possession of child pornography on or about
09:36:12AM 21
July 10th, 2015, at Vancouver, within this district.
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do you plead to that charge as it is set forth in the
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superseding indictment?
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THE DEFENDANT:
09:36:22AM 25
THE COURT:
Not guilty, your Honor.
In Count 2 you are charged with

How
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receiving child pornography between February 21st and
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March 2nd of last year within this district.
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plead to Count 2 as it is set forth in the superseding
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indictment?
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THE DEFENDANT:
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THE COURT:
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receipt of child pornography on or about June 18th of last
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year, at Vancouver, within this district.
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plead to Count 3 as it is set forth in the superseding
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And in Count 3 you are charged with
How do you
indictment?
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THE DEFENDANT:
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THE COURT:
09:37:05AM 13
How do you
All right.
The pleas will be entered.
We will turn our attention to other matters.
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MS. SULLIVAN:
Your Honor, before we turn our
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attention to that, in connection with the arraignment we
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had asked that Mr. Michaud's bond conditions be reduced to
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a level where he is on electronic monitoring, but just on
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a curfew.
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to do that and is in agreement with that, and we would ask
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that the bond condition be modified accordingly.
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I understand that Pretrial Services is prepared
THE COURT:
I have not heard from Pretrial
Services on this.
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PRETRIAL SERVICES OFFICER:
Good morning, your
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Honor.
I am Jamie Parkhurst with Pretrial Services.
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Mr. Michaud has been on supervision with our office since

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he was placed on bond.
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have one violation, where we recommended no action be
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taken by the court.
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appropriate for him to be moved to a curfew.
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THE COURT:
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MR. HAMILTON:
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objection to that.
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THE COURT:
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He has been in compliance.
He did
At this time we do feel that it is
Mr. Becker or -Your Honor, the government has no
All right.
The motion then will be
granted and the release bond will be modified as requested

in the defendant's motion.
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MS. SULLIVAN:
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THE COURT:
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to compel that is pending.
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the government.
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request to file a response in excess of 12 pages.
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have already read 21 pages, I will grant that motion.
09:39:34AM 17
Thank you, your Honor.
I guess the next matter is the motion

I read the response filed by
They also asked for an order granting the

Since I
But I must say, having read all of your briefs twice
09:39:38AM 18
now, and some parts of your briefs more than twice, I wish
09:39:47AM 19
that I had not granted the first motion to compel or any
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of the ones since.
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The motion to exceed page limits.
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excess talk in all of your pleadings that just is not
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necessary.
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excess pages in regards to the government's motion to
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compel.
Strike that.
Not motion to compel.

There is a lot of
Be that as it may, I will grant the motion for

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09:40:30AM
09:40:36AM
more time on that issue for one reason or another.
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don't know if you want to address that in any way today or
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not, Mr. Fieman.
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relevance or materiality --
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MR. FIEMAN:
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briefly skim the 21 pages since it came in.
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say, based on my preliminary survey, there is some
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substantial disputes.
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Now, I read those pleadings.
Everybody seemed to want

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The government says there is no
Your Honor, I have only been able to

I can only
We would want time to respond, as
briefly as possible.
But as I indicated in my initial motion to compel,
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they have assured us that they are not withholding any
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information that is relevant to the pending motions.
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as indicated, also in our motion, if we do move into the
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trial phase, as the case proceeds after this hearing,
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there are now separate trial-related issues.
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want the opportunity to respond to that and address some
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of the claims that I very briefly saw in the government's
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filing late last night.
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But
And we would
Your Honor, I would defer to the court on how long --
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That is at least a week to do that.
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preparation for this hearing we have a lot of things
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backed up next week in terms of my other clients' needs.
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But any reasonable amount of time, we can file a response.
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Mostly because in
I can tell your Honor this will spill over into chain

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of custody and Daubert issues that will probably be raised
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separately.
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talked about some scheduling issues that the government
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has raised with me in terms of the trial and Mr. Becker's
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availability, possibly to confer after the hearing today,
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if the case proceeds, and submit a proposed schedule to
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the court.
09:42:35AM
THE COURT:
09:42:39AM
MR. FIEMAN:
It might be more efficient, once we have
Just exactly what are you asking for?

Your Honor, we are asking for what we
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asked for from the beginning, and we thought we were
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getting, which is the --
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THE COURT:
I'm sorry.
I am having a hard time
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hearing you.
Why don't you raise that whole thing up.
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Hit the switch down by your knee.
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MR. FIEMAN:
09:43:01AM 16
THE COURT:
09:43:03AM 17
MR. FIEMAN:
Is that better, your Honor?

Yes.
Your Honor, we are asking for what we
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thought they agreed to, which is the NIT programming code.
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As indicated, we got a piece of it.
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They have a different understanding of our agreement.
09:43:15AM 21
That's fine.
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said/she said contest, but the parts that are missing are
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important for our trial preparation.
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09:43:26AM 25
I don't want to go backwards and have a he
THE COURT:
If I understand what you're saying,
you want a little more time to respond?

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MR. FIEMAN:
09:43:31AM
That's where I started.
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time?
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09:43:35AM
09:43:36AM
09:43:39AM
09:43:46AM
THE COURT:
09:43:47AM
MR. BECKER:
THE COURT:
Yes, your Honor.
Definitely that.
It is just a question of how much
That's what I am asking you, how much
time.
MR. FIEMAN:
At least a week, your Honor.
I would
ask for a week from Monday, actually, realistically.

Mr. Becker.
Your Honor, as to the scheduling of
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the motion to compel, we don't have an objection to the
09:44:03AM 11
defense having that time that is requested to respond.
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certainly --
09:44:12AM 13
in our pleading, we do believe that we have provided
09:44:15AM 14
sufficient information, and we don't believe the request
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for additional information is material.
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that position.
09:44:22AM 17
We did think --
We certainly --
We
Obviously, as you have seen
And we maintain
Over the last week it seemed like the
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defense thought that this issue was pertinent to this
09:44:27AM 19
hearing, and obviously asked for an expedited hearing, and
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we are on different footing now.
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did respond.
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have obviously been --
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have been dealing with this week in getting ready for this
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hearing.
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That is what it is.
We
I apologize for the length, your Honor.
We
THE COURT:
There have been a lot of issues we
It takes more time to write a short

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brief than a long one.
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object to the additional time.
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flag for the court, as we flagged in our response, in the
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event that the court were to find that there are material
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issues involved, that we are requesting an ex parte
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in camera hearing in order to present further information
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pertinent to the law enforcement privilege.
09:45:09AM
MR. BECKER:
Sometimes, your Honor.
We don't
I certainly do want to
As long as the court will at least hear that request
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on this schedule, we don't object to the defense having
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more time to respond.
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hearing in terms of other scheduling matters.
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preliminary conversations about a potential continuance of
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the trial date in light of the numerous issues -- the
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pretrial issues which still need to be resolved.
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think the parties have an eye towards being able to agree
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on that, in order that the court can decide all of the
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pretrial matters that it needs to decide.
I think we can confer after today's

We have had
And I
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THE COURT:
I think the first thing here is the
09:45:44AM 20
scheduling on this motion.
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response for a week from Monday -- a reply, that is.
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appears to me that the government is throwing the gauntlet
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down on the question of relevance and materiality of the
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requested information.
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guess, the Tuesday following that.
It is appropriate to set a
It
We will note it up for that, I

At that point we will

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have to decide what other hearings, if any, may be
09:46:31AM
necessary on that subject.
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know that that's appropriate in some circumstances.
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challenges due process.
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insofar as we can without the necessity of any hearing or
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information that is kept from the defendant.
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09:47:06AM
I am very reluctant to have an in camera hearing.
MR. BECKER:
that, your Honor.
I
It
I would rather deal with that
We certainly understand and respect

We don't take making a request like
09:47:09AM 10
that lightly at all.
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substantial arguments that have been made openly and will
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be made openly.
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substantial authority within the Ninth Circuit for the
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resolution of issues, such as this, in part via ex parte
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in camera hearing by the court as a part of the resolution
09:47:30AM 16
of the issues.
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09:47:35AM 18
Certainly we have set forth
That said, we have also set forth
THE COURT:
If that's necessary we will deal with
that after we get the pleadings closed.
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MR. BECKER:
Your Honor, in terms of the Tuesday
09:47:40AM 20
that your Honor mentioned for scheduling, I am not sure
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what day that falls on.
09:47:46AM 22
other trial availability and needs in other districts.
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am just not sure what date your Honor has suggested, that
09:47:53AM 24
Tuesday.
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THE CLERK:
I do have some trial -- some
That would be February 2nd.

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THE COURT:
Okay.
When I get that we will take a
09:48:06AM
09:48:14AM
MR. BECKER:
09:48:22AM
THE COURT:
09:48:24AM
09:48:30AM
09:48:35AM
pleadings, our position is that, given the issues relating
09:48:41AM
to the four corners of the warrant, the undisputed facts,
09:48:44AM
and the exhibits that have been presented to the court, we
look at it and decide the future of the motion to compel.

You want to be heard further on your
request for a Franks hearing.

MR. FIEMAN:
Your Honor, as set forth in our
09:48:50AM 10
have definitely made a showing for the Franks hearing.
09:48:52AM 11
will briefly summarize what that is in a moment, plus some
09:48:55AM 12
new information that has come to light.
09:48:58AM 13
But the Franks hearing, as indicated in my pleadings,
09:49:01AM 14
would be rendered moot based upon what we believe are
09:49:04AM 15
dispositive issues that are already before the court.
09:49:09AM 16
But addressing your question directly, we do believe
09:49:12AM 17
we have met our burden of showing that there is a Franks
09:49:15AM 18
issue.
09:49:19AM 19
are a host of issues that we flagged, primarily to two
09:49:23AM 20
things:
09:49:29AM 21
misleading statements about the location to be searched,
09:49:33AM 22
leading to a warrant on its face, as limited to the
09:49:36AM 23
Eastern District of Virginia, while the warrant was in
09:49:40AM 24
fact executed, in Mr. Michaud's case, in Washington.
09:49:43AM 25
And that is directed primarily -- although there
That is, first of all, intentionally false or
The second core Franks issues is intentionally or

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09:49:47AM
recklessly misleading the court or failing -- recklessly
09:49:52AM
failing to verify the homepage information.
09:49:55AM
believe this is critical, because it goes to the heart of
09:49:58AM
the probable cause.
09:50:00AM
09:50:04AM
government has essentially hung its probable cause
09:50:06AM
argument on the claim that this would be immediately
09:50:11AM
apparent as a dedicated child pornography site to even a
09:50:15AM
first time visitor, because that's all that matters
And we
The court is aware of Gourde and the other cases.
The
09:50:18AM 10
really, is what's on the homepage, because the warrant
09:50:20AM 11
authorized the search as of logging in on the homepage.
09:50:24AM 12
Now, your Honor, I don't believe in fact that there is
09:50:28AM 13
any testimony even required to resolve that issue in our
09:50:32AM 14
favor.
09:50:34AM 15
two possible answers that the agent could give.
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did not check the homepage after he viewed it, I believe,
09:50:42AM 17
on February 18th.
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warrant was submitted on the 20th.
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face value.
09:50:54AM 20
they were aware at the time of the execution of the search
09:50:56AM 21
warrant in Naples, Florida, on the 19th, when they seized
09:51:02AM 22
the website, that the logo had changed.
09:51:09AM 23
And I will tell you why.
Because there are only

One is he
The site was seized on the 19th, the

Let's take that at
We now know from government exhibits that
And really it comes down to that issue of whether the
09:51:11AM 24
pictures that were on the banner as of February 3rd were
09:51:16AM 25
lascivious, and therefore qualified -- clearly indicated

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pornography.
That point is debatable in itself.
But it
09:51:25AM
is a secondary point.
09:51:26AM
09:51:29AM
value, as it was at the time the warrant was issued, it is
09:51:32AM
clearly not advertising itself as a child pornography
09:51:37AM
site.
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indicate in any way it is anything other than a chat or an
09:51:44AM
erotic content site.
09:51:46AM
The point is, when you take the homepage at face
There is no lascivious pictures.
It doesn't
Now, as I said, the officer could say one of two
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things:
09:51:53AM 11
which under the circumstances, with a dynamic website --
09:51:57AM 12
The fact that the FBI in fact had control of the site as
09:52:01AM 13
of the 19th, the day before the warrant application, we
09:52:05AM 14
submit by any common sense measure that is a reckless
09:52:08AM 15
failure to verify, particularly when there are claims
09:52:11AM 16
about the agent's experience with internet investigations
09:52:13AM 17
and the dynamic nature of websites.
09:52:16AM 18
Either he didn't check after the site was seized,
The other alternative is that he did know that the
09:52:19AM 19
logo had changed, in which case I don't know if anything
09:52:23AM 20
more would need to be said at all.
09:52:25AM 21
So, your Honor, we believe we have amply established
09:52:28AM 22
the need for a Franks hearing in terms of the Franks
09:52:30AM 23
issues in evidence.
09:52:33AM 24
reach that because we believe this case is resolved on the
09:52:37AM 25
four corners of the warrant application.
We do not believe the court needs to

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THE COURT:
To justify a separate Franks hearing
09:52:47AM
there has to be a substantial preliminary showing that a
09:52:51AM
false statement knowingly and intentionally, or with
09:52:54AM
reckless disregard for the truth, was included by the
09:53:00AM
affiant; and, also, that the alleged false statement is
09:53:09AM
necessary to a finding of probable cause.
09:53:13AM
09:53:14AM
here.
09:53:19AM
other issues in the case regarding suppression and
I don't think that preliminary showing has been made

I think the issues that you raise are part of the
09:53:23AM 10
sufficiency of the application, and they can fairly be
09:53:29AM 11
reached without a separate Franks hearing.
09:53:35AM 12
is just not the necessity for that hearing.
09:53:41AM 13
the showing is sufficient under that standard.
09:53:44AM 14
09:53:46AM 15
MR. FIEMAN:
THE COURT:
09:53:50AM 17
MR. FIEMAN:
THE COURT:
09:53:57AM 20
MR. FIEMAN:
09:54:01AM 22
09:54:02AM 23
Your Honor, just to understand you,
I'm sorry.
What?
Your Honor, just so I'm clear, we
will still be able to address the evidence related to --
09:53:55AM 19
09:54:00AM 21
I don't think
we are still able to explore those factual --
09:53:47AM 16
09:53:53AM 18
I think there
Sure.
-- all of those probable cause
application issues -THE COURT:
It is all part of the motion to
suppress.
09:54:03AM 24
MR. FIEMAN:
09:54:04AM 25
THE COURT:

Or motions to suppress.
The next

17
09:54:11AM
matter is the motion to dismiss based on outrageous
09:54:25AM
government conduct.
09:54:37AM
want to say about that.
09:54:38AM
09:54:42AM
a few things I want to say about that.
09:54:45AM
indicated in our initial motion to dismiss, the dismissal
09:54:52AM
motion also includes -- it says if there is a lesser
09:54:57AM
remedy that accomplishes the same deterrent purposes, the
09:55:00AM
court should take that into account.
09:55:03AM 10
09:55:06AM 11
09:55:07AM 12
MR. FIEMAN:
I would like to hear anything you
And I do have
Because with -- as
Again, we are kind of overlapping with some of the

suppression issues.
I just want to very briefly state where we see this
09:55:09AM 13
case to be and the very specific issues that we think are
09:55:14AM 14
dispositive, either in terms of dismissal or finding
09:55:19AM 15
grounds for dismissal and choosing suppression as an
09:55:26AM 16
appropriate remedy.
09:55:28AM 17
Let me just summarize what we see this case to be
09:55:31AM 18
about, your Honor.
09:55:35AM 19
constitutional line to the sand.
09:55:41AM 20
legitimate challenges trying to investigate internet
09:55:46AM 21
crime.
09:55:49AM 22
In some ways it comes down to a

The government has
We do not dispute that.
What we do dispute is whether or not the government
09:55:53AM 23
can unilateral determine the scope and extent of its
09:55:57AM 24
investigatory powers without judicial oversight and in
09:56:02AM 25
defiance of the laws, Rule 41 in particular, and the

18
09:56:07AM
restrictions on illegal investigations that are on the
09:56:11AM
books.
09:56:12AM
09:56:17AM
warrants that allow them to extend their powers.
09:56:20AM
we believe they cannot do is engage in this kind of
09:56:26AM
gamesmanship with judicial oversight that has been
09:56:30AM
evidenced not only throughout this case but in a pattern
09:56:34AM
of these technology cases that is leading, we think, to a
09:56:37AM
very substantial Fourth Amendment and privacy rights
09:56:40AM 10
09:56:41AM 11
Now, they can advocate for changes.
They can seek

But what
crisis.
It is often unfortunate that these constitutional
09:56:43AM 12
issues are presented in the court in the context of the
09:56:47AM 13
type of allegations that are made in this case.
09:56:50AM 14
were dealing with bank fraud or white collar defendants
09:56:53AM 15
who had their private computers hacked, there is a
09:56:57AM 16
different momentum.
09:57:00AM 17
stands here --
09:57:02AM 18
other cases they have charged.
09:57:05AM 19
presumption of innocence as a man who has been subjected
09:57:08AM 20
to a Washington search on the basis of an invalid Virginia
09:57:12AM 21
warrant.
09:57:16AM 22
We recognize that.
This is his case.
If we
But Mr. Michaud
It is not about any
He stands here with the
That is the core of our claim.
Now, your Honor, I want to zero in on one issue that
09:57:20AM 23
goes to the heart of this dismissal, and all of the
09:57:23AM 24
issues.
09:57:26AM 25
and center.
It is the one issue we raised --
And it is front
In all the reams of paper the court has waded

19
09:57:30AM
through, the government has not once responded to it.
09:57:35AM
this is this:
09:57:40AM
District of Virginia.
09:57:43AM
computers, persons, and property in the Eastern District
09:57:46AM
of Virginia.
09:57:48AM
face of their warrants.
09:57:52AM
elsewhere, Colorado and elsewhere.
09:57:55AM
realized, after Judge Smith's decision and their own
09:57:58AM
internal policies, that Rule 41 simply did not allow that,
09:58:01AM 10
09:58:03AM 11
They sought a warrant from the Eastern

They got authority to search
They drafted that warrant.
They changed the
They used to say in Nebraska and

And once they
they simply edited the warrant.

Now, taking that warrant at face value --
And this is
09:58:05AM 12
why we have been really hammering this, your Honor,
09:58:09AM 13
because it is a brick and mortar issue.
09:58:11AM 14
dispute at this point that the search occurred on
09:58:14AM 15
Mr. Michaud in his home in Washington.
09:58:17AM 16
And
There is no
Now, imagine if the government had gotten a warrant in
09:58:22AM 17
the Eastern District of Virginia to search multiple --
09:58:25AM 18
hundreds of thousands of houses in the Eastern District of
09:58:28AM 19
Virginia, and they then decided that they were going to
09:58:31AM 20
get in that car, drive across country, go into
09:58:34AM 21
Mr. Michaud's home, extract information from his computer
09:58:39AM 22
on the basis of that Virginia warrant.
09:58:42AM 23
non-starter.
09:58:44AM 24
non-starter because it violates what is the plain language
09:58:49AM 25
of the warrant itself, and it is in violation of the
It would be a non-starter.
It would be a
It would be a

20
09:58:52AM
09:58:55AM
09:58:58AM
to set aside all of these technology issues, all of this
09:59:02AM
back and forth about who was truthful, who was not
09:59:06AM
truthful, and look at the face of the warrant.
09:59:09AM
this were any other case, a drug bust case, a bank fraud
09:59:13AM
case, we would be over now.
09:59:18AM
09:59:24AM
09:59:26AM 10
execution limits that were in that warrant.

So what I am asking the court to do, in some sense, is
And wrapped up in that, your Honor, is this

government -- the government's argument that somehow all
of this was necessary.
09:59:28AM 11
THE COURT:
09:59:30AM 12
MR. FIEMAN:
All what?
All of what they did in terms of
09:59:31AM 13
obtaining the warrant and executing the NITs was
09:59:35AM 14
necessary, that they had no alternatives.
09:59:37AM 15
statement.
09:59:38AM 16
Because if
That is a false
This warrant authorized them to deploy NITs at the
09:59:44AM 17
time people logged into the home site.
09:59:48AM 18
to allow access to actual pornography on the site.
09:59:51AM 19
They did not need
We have learned as of last night that in fact this is
09:59:53AM 20
not the first time the government has run a child
09:59:55AM 21
pornography site.
09:59:58AM 22
several times before, and we have received confirmation of
10:00:01AM 23
that.
10:00:01AM 24
10:00:04AM 25
It has apparently been done in secret
This is a very troubling aspect of the case.
Not only
are they not being candid with the court in terms of

21
10:00:07AM
allowing magistrates to supervise, or limit, or simply
10:00:13AM
exercise full review of the warrant applications, they are
10:00:16AM
now not even disclosing to the courts in all of these
10:00:20AM
cases that they are planning to continue the distribution
10:00:23AM
of child pornography as part of their investigations.
10:00:25AM
10:00:29AM
a legitimate argument for doing that as an investigatory
10:00:32AM
need, which is not true, judges need to be able to decide
10:00:38AM
if it is appropriate.
10:00:43AM 10
10:00:46AM 11
We consider that outrageous, because even if there is
And, frankly, we believe it is
appalling.
Now, your Honor, as I also indicated, wrapped up with
10:00:52AM 12
this dismissal motion is the core issue of probable cause,
10:00:56AM 13
because we do think it is outrageous that when presenting
10:01:00AM 14
such a sweeping warrant to a magistrate, that in this case
10:01:05AM 15
authorized up to 100,000 searches, that they were not
10:01:11AM 16
candid or responsible in terms of the key facts in that
10:01:16AM 17
probable cause assessment, which was the homepage.
10:01:20AM 18
So what you ended up with is a warrant that allowed
10:01:25AM 19
tens of thousands, possibly hundreds of thousands, of
10:01:29AM 20
searches anywhere in the world based on people signing
10:01:33AM 21
into a website that does not even advertise itself as
10:01:36AM 22
having illegal content.
10:01:41AM 23
is unprecedented.
10:01:43AM 24
10:01:49AM 25
And, frankly, the scope of that
And we haven't even gotten to the Rule 41 violations,

your Honor, which I will not address, because that is a

22
10:01:51AM
10:01:52AM
10:01:56AM
itself is aiding and abetting the uploading and
10:02:00AM
distribution of massive amounts of child pornography.
10:02:05AM
don't want to sound at all self-righteous about this, your
10:02:11AM
Honor, because I understand the nuances of criminal cases,
10:02:13AM
and I defend people who are charged with distributing or
10:02:18AM
possessing child pornography, most obviously.
10:02:22AM
people face criminal charges.
10:02:26AM 10
10:02:32AM 11
separate matter.
And all this time, while this is going on, the FBI
But those
All we are asking is that
the government face judicial oversight.

So, your Honor, we believe that we have strong grounds
10:02:36AM 12
for dismissal of the indictment.
10:02:42AM 13
choose the lesser remedy that courts have approved for
10:02:46AM 14
outrageous government conduct, of suppression.
10:02:50AM 15
believe, your Honor, that this is a pivotal moment for
10:02:55AM 16
privacy and constitutional rights in the digital age.
10:02:59AM 17
That is a lot for Mr. Michaud to bear, and we don't want
10:03:03AM 18
to lose sight of the man that is sitting here, and the
10:03:06AM 19
court has had a chance to assess.
10:03:08AM 20
But the core of it is this:
We invite the court to
We
Even if the government
10:03:11AM 21
believes that it was perfectly allowed to do what it did,
10:03:16AM 22
then why did they not tell Judge Buchanan what they were
10:03:21AM 23
doing about running a child pornography site?
10:03:23AM 24
they draft a warrant that clearly stated that they would
10:03:27AM 25
execute it outside the Eastern District of Virginia?
Why didn't

Why
23
10:03:32AM
take those steps if this is all legal and appropriate?
10:03:36AM
10:03:39AM
believe the court can dispose of all these issues based
10:03:42AM
simply on the face of the warrant, the government's
10:03:44AM
failure to explain the discrepancy between the warrant
10:03:47AM
itself and the scope that they claim allowed them for the
10:03:53AM
searches, and the discrepancy also, your Honor, between
10:03:56AM
the fact that now we know up to 100,000 people accessed
10:04:01AM
this supposedly dedicated child pornography site, and yet
Your Honor, I come back to the same argument.
10:04:05AM 10
we see no evidence, when we look at the homepage itself,
10:04:10AM 11
that was not presented to the magistrate in the Eastern
10:04:13AM 12
District of Virginia accurately, that in fact this is a
10:04:16AM 13
very ambiguous location.
10:04:43AM 14
MR. BECKER:
Your Honor, I would start by, again,
10:05:00AM 15
bringing us back to, as I think I have before here, the
10:05:05AM 16
legal standards and principles that apply.
10:05:09AM 17
you don't hear in the defendant's argument are any
10:05:13AM 18
applications of them whatsoever.
Because what
10:05:15AM 19
And there is a standard that the Ninth Circuit has
10:05:18AM 20
laid out in determining whether or not government conduct
10:05:22AM 21
is quote-unquote outrageous.
10:05:30AM 22
We believe there is no question that that bar is nowhere
10:05:32AM 23
near met in this case.
It is an extremely high bar.
10:05:35AM 24
We are dealing with actions by law enforcement that
10:05:41AM 25
were necessitated by the actions of the offenders choosing

24
10:05:44AM
to use, and in fact misuse, technology in order to hide
10:05:49AM
their identity while they sought to exploit and abuse
10:05:53AM
children online.
10:05:55AM
10:05:58AM
problem --
10:06:02AM
borne out by the active use of this site.
10:06:07AM
there were so many thousands of users and so much child
10:06:10AM
pornography being distributed long before law enforcement
10:06:15AM
ever seized it is an indication of the scope of the
10:06:17AM 10
10:06:21AM 11
And law enforcement responded to that enormous

The enormity of that problem, your Honor, is
The fact that
problem that law enforcement faced.

In the face of that, what actions did law enforcement
10:06:24AM 12
take?
10:06:29AM 13
warrant the defense -- what NIT warrant the defense is
10:06:33AM 14
reading and what Title III application the defense is
10:06:36AM 15
reading when they say that the government, the FBI, took
10:06:41AM 16
these actions without judicial oversight.
10:06:45AM 17
wrong.
10:06:49AM 18
They went to the court.
I can't figure out what
That is simply
It is incorrect.
The affidavit in support of the network investigative
10:06:52AM 19
technique unmistakably advised the magistrate that the
10:06:57AM 20
child pornography website involved here was going to
10:07:00AM 21
remain operating at a government facility in order for
10:07:04AM 22
that then court-authorized investigative technique to be
10:07:09AM 23
deployed.
10:07:09AM 24
10:07:14AM 25
That warrant articulated to Magistrate Judge Buchanan

why that technique was necessary, because we were dealing

25
10:07:17AM
with a website that operated on the anonymous Tor network.
10:07:23AM
That changes the game in terms of what law enforcement has
10:07:26AM
available to them in order to identify users.
10:07:30AM
laid out in detail in the NIT warrant affidavit.
10:07:35AM
reasonable reading of that affidavit would show that the
10:07:39AM
magistrate would not have known that the site was going to
10:07:42AM
continue to operate at a government facility.
10:07:45AM
directly stated.
10:07:46AM
That is
And no
It is
The Title III affidavit and application approved by a
10:07:51AM 10
United States District Court judge also articulated that
10:07:55AM 11
the website would remain operating at a government
10:07:58AM 12
facility, and that the United States, the FBI, was going
10:08:01AM 13
to seek and obtain authorization to deploy a network
10:08:05AM 14
investigative technique on its users.
10:08:08AM 15
reasons why, again, the necessity of the site having to
10:08:12AM 16
remain operating in order to deploy that sort of
10:08:15AM 17
technique.
10:08:15AM 18
It discussed the
So I just don't understand the argument that there was
10:08:20AM 19
not judicial oversight involved here when the actions that
10:08:25AM 20
law enforcement took were judicially approved.
10:08:29AM 21
judicial oversight.
10:08:31AM 22
That is
So bringing us back to the standards here, your Honor,
10:08:35AM 23
in terms of the dismissal issue:
Again, extremely high
10:08:43AM 24
standard according to the Ninth Circuit.
10:08:48AM 25
that the Ninth Circuit has consistently refused to find
So high in fact

26
10:08:52AM
outrageous government conduct where the government used
10:08:55AM
so-called reverse stings; that is, where there was no
10:08:59AM
criminal enterprise that was going on, the government
10:09:03AM
created or came up with sort of a fake scheme in which
10:09:08AM
defendants participated and were charged.
10:09:11AM
sorts of scenarios, which is vastly different than this
10:09:15AM
scenario, the Ninth Circuit has not found outrageous
10:09:19AM
conduct.
10:09:20AM
Even in those
But the standards here, as laid down by the circuit,
10:09:23AM 10
involve a six-factor analysis.
10:09:30AM 11
criminal characteristics of the defendant; whether there
10:09:33AM 12
was individualized suspicion of the defendant; the
10:09:36AM 13
government's role in creating, if at all, the crime of
10:09:40AM 14
conviction; the government's encouragement, if at all, of
10:09:47AM 15
the defendant to commit the particular conduct; the nature
10:09:49AM 16
of the government's participation in the conduct; and the
10:09:51AM 17
nature of the crime being pursued; the necessity for the
10:09:55AM 18
actions taken in light of the criminal enterprise at
10:09:57AM 19
issue.
10:09:58AM 20
It involves the known
Your Honor, as we have argued in our briefing, all of
10:10:01AM 21
those factors weigh heavily in favor of the government's
10:10:04AM 22
conduct being reasonable in this case -- in this
10:10:10AM 23
investigation in response to the particular concerns
10:10:12AM 24
involved.
10:10:17AM 25
important that we are talking about the online sexual
And the crime does matter.
It is not -- it is

27
10:10:23AM
exploitation of children.
That does substantively matter
10:10:26AM
in terms of the public safety and interests at stake.
10:10:30AM
does matter that these offenders were acting online,
10:10:35AM
misusing a Tor technology for their own criminal aims,
10:10:38AM
making it extremely difficult for them to be identified.
10:10:42AM
That absolutely matters.
10:10:46AM
10:10:49AM
different or apply differently because of the subject
10:10:51AM
matter of the crime --
The suggestion that somehow the standards would be
I think the defense sort of wants
10:10:56AM 10
to imply that because this crime involves children that
10:11:01AM 11
somehow we will give more latitude to the government in
10:11:06AM 12
some ways.
10:11:09AM 13
that is the case at all.
10:11:11AM 14
And that is certainly not --
I don't believe
The fact that the crimes do involve children, though,
10:11:14AM 15
means there is a compelling interest and need to
10:11:17AM 16
investigate the perpetrators, to identify them and to
10:11:20AM 17
apprehend them, not just to shut down the facilities
10:11:26AM 18
through which they facilitate and distribute unlawful
10:11:31AM 19
contraband.
10:11:32AM 20
It
I would like to go through on a more individual basis
10:11:35AM 21
the particular factors, your Honor.
The first two
10:11:39AM 22
characteristics, the known criminal characteristics of
10:11:41AM 23
users, individualized suspicion of the defendant:
10:11:46AM 24
Certainly at the outset of the investigation here the
10:11:49AM 25
government wasn't aware of any conduct by Michaud.

That
28
10:11:53AM
is because he was acting anonymously on the Tor network.
10:11:56AM
We know that he joined this website long before the
10:12:01AM
government ever took actions to take it over.
10:12:04AM
10:12:08AM
criminal users of this website of engaging in the
10:12:11AM
trafficking of child pornography:
10:12:14AM
and receipt.
10:12:17AM
the way the site works.
10:12:19AM
But there was certainly good reason to suspect the
Access, distribution,
And that is borne out by the investigation,
As the defense concedes -- at least in the context of
10:12:22AM 10
their dismissal motions, the defense concedes and in fact
10:12:27AM 11
affirmatively argues that this website facilitated child
10:12:32AM 12
pornography on a massive scale.
10:12:34AM 13
on the suppression side of things that they want to shift
10:12:37AM 14
their argument to this website being merely a discussion
10:12:41AM 15
forum and nothing else.
10:12:43AM 16
ways, your Honor.
10:12:44AM 17
It is only when they are
Well, they can't have it both
The fact is, this was a child pornography website,
10:12:48AM 18
through which substantial amounts of child pornography
10:12:49AM 19
were trafficked and distributed long before the government
10:12:52AM 20
took specific actions against the site.
10:12:55AM 21
And so the individual -- the users of this site,
10:12:58AM 22
clearly legitimate targets of government investigation.
10:13:01AM 23
And that had nothing to do with anything the government
10:13:03AM 24
created in terms of the criminal scheme.
10:13:07AM 25
users' criminal scheme.
That was those

29
10:13:09AM
That leads into the next factor, your Honor.
And that
10:13:13AM
is, again, did the government play a role in the creation
10:13:16AM
of the crime in which this defendant, Mr. Michaud, is
10:13:20AM
accused?
10:13:26AM
merely attached itself to one that was already established
10:13:29AM
and ongoing.
10:13:32AM
outrageous government conduct.
10:13:35AM
FBI, didn't create this website.
10:13:39AM
users and its administrators, and existed and
Here, and the law bears this out, the government
That weighs against any finding of

The United States, the
It was created by its
10:13:44AM 10
substantially distributed child pornography long before
10:13:46AM 11
the government ever took it over in an effort to actually
10:13:49AM 12
identify its criminal users.
10:13:52AM 13
Did the government encourage the defendant to
10:13:56AM 14
participate in the crimes at issue?
10:13:59AM 15
absolutely not the case.
10:14:05AM 16
Pewter, joined the website on October 31st, 2014, long
10:14:09AM 17
before law enforcement ever received the website.
10:14:13AM 18
government had nothing to do with his independent decision
10:14:15AM 19
to associate himself with this criminal enterprise.
10:14:18AM 20
We know that is
The defendant, his user account
The nature of the government's participation, and was
10:14:22AM 21
it responsible --
10:14:24AM 22
did responsible for Michaud's crimes?
10:14:29AM 23
against a finding of outrageous conduct here.
10:14:31AM 24
10:14:34AM 25
The
Was the nature of what the government

Again, weighs
Did the government act as a partner in the criminal

activity, or more of an observer in the defendant's

30
10:14:38AM
criminal conduct?
Well, here, again, the site was already
10:14:42AM
operating, had operated for six months.
10:14:47AM
the government allowed it to continue to operate on a
10:14:49AM
government server in order to take specific
10:14:52AM
court-authorized actions to attempt to identify users and
10:14:55AM
monitor user communications.
10:14:58AM
The government, the FBI, did not post any links,
10:15:03AM
videos -- any images, videos, or links to images, or
10:15:07AM
videos of child pornography.
For 14 brief days
The FBI conducted
10:15:11AM 10
court-authorized monitoring, conducted court-authorized
10:15:15AM 11
deployment of the NIT in order to collect information that
10:15:18AM 12
would help identify the people who were actually
10:15:20AM 13
perpetrating the crimes.
10:15:22AM 14
Another factor in this part is whether the defendant
10:15:26AM 15
would have the technical expertise or resources necessary
10:15:31AM 16
to commit such a crime without the government's
10:15:34AM 17
intervention.
10:15:37AM 18
Mr. Michaud.
10:15:39AM 19
receiving child pornography that have nothing to do with
10:15:42AM 20
the website at issue, based on images that were found on
10:15:45AM 21
his devices that were seized from his home, or pursuant to
10:15:50AM 22
other residential search warrants.
10:15:54AM 23
technical ability to navigate Tor and get to this website,
10:15:58AM 24
because he joined it long before law enforcement took it
10:16:02AM 25
over.
Undoubtedly that is the case with

He is charged with counts of possessing and
He clearly had the

31
10:16:02AM
This is another area where the defense focuses on --
10:16:06AM
away from Mr. Michaud, the actual defendant here in this
10:16:09AM
case, and more on the other users of the website.
10:16:12AM
case is about Mr. Michaud, what is he charged with, what
10:16:16AM
was his conduct, and was the government responsible for
10:16:20AM
that conduct?
10:16:23AM
any direct contact with Mr. Michaud during the operation.
10:16:31AM
The defense doesn't allege that, and neither does the
10:16:34AM
government.
10:16:34AM 10
And the answer is just no.
This
There wasn't
The fact is he made an independent choice to associate
10:16:37AM 11
himself with a criminal enterprise that was later taken
10:16:39AM 12
over.
10:16:43AM 13
got information to help identify him, and nothing more.
10:16:47AM 14
And because the government did that, we eventually
So that comes around to the last factor, which is the
10:16:50AM 15
need for the investigative technique used in light of the
10:16:53AM 16
challenges of investigating and prosecuting the type of
10:16:56AM 17
crime being investigated.
10:16:59AM 18
absolutely weighs in favor of the government's conduct
10:17:03AM 19
being reasonable in light of the circumstances, the
10:17:08AM 20
government going to courts -- not just one court, but
10:17:11AM 21
courts, for approval for the investigative technique that
10:17:15AM 22
was used, for the Title III monitoring that was used,
10:17:18AM 23
disclosing to those courts the necessity for this
10:17:22AM 24
technique, the fact that this site had to continue to
10:17:24AM 25
operate in order to give law enforcement an opportunity to
This factor, your Honor,

32
10:17:27AM
identify the perpetrators.
It was a brief continued
10:17:32AM
operation, again, an enterprise that had existed for six
10:17:36AM
months, rather than shut it down the date of seizure, 14
10:17:39AM
more days, and that's all, in an effort to use
10:17:42AM
court-authorized techniques to monitor users in the hope
10:17:46AM
of identifying them.
10:17:47AM
Now, it is certainly the case, your Honor, that law
10:17:56AM
enforcement could have made the decision of shuttering the
10:17:58AM
website on the date that it was seized.
In many other
10:18:01AM 10
contexts of investigation that is also the case.
10:18:04AM 11
long-term fraud investigations, in long-term narcotics
10:18:08AM 12
investigations, there are innumerable points in which law
10:18:13AM 13
enforcement can decide to take an action which would
10:18:16AM 14
shutter the organization.
10:18:19AM 15
which law enforcement faces those sorts of choices.
10:18:25AM 16
In
This is not the only context in
So here, the shutting down that website undoubtedly
10:18:29AM 17
would have stopped criminals from being able to use that
10:18:32AM 18
website in order to traffic child pornography images and
10:18:37AM 19
videos on Tor.
10:18:40AM 20
particular facility.
10:18:43AM 21
not put an end to the users' ability to continue
10:18:48AM 22
committing those crimes, to the users' ability to continue
10:18:51AM 23
to abuse children, produce images, and then share them
10:18:55AM 24
with others, and to the users' ability to traffic in those
10:18:59AM 25
images.
It would have taken away that one

But it certainly would not and did
And that is because without taking action to

33
10:19:01AM
identify the perpetrators, those perpetrators go on and
10:19:06AM
continue with their criminal conduct, and as we have
10:19:08AM
articulated in our filings, simply create new websites
10:19:13AM
that operate the same or similarly.
10:19:15AM
10:19:18AM
pornography websites that operate similarly to this
10:19:21AM
particular site, users who can remain anonymous while
10:19:26AM
trafficking in child pornography, and users who remain
10:19:29AM
unidentified, criminals who remained unidentified.
10:19:31AM 10
As of today, on the Tor network, there are child
Just shutting down the website is not enough.
The
10:19:34AM 11
obligation of law enforcement for the government is to
10:19:37AM 12
take some action to identify the perpetrators, and
10:19:41AM 13
identify the victims, and to get those children away,
10:19:44AM 14
where we can, from those abusers.
10:19:48AM 15
That's the necessity behind a site like this continuing to
10:19:52AM 16
operate, so that crucial IP address information, which
10:19:58AM 17
ultimately leads to being able to identify a perpetrator,
10:20:02AM 18
being able to use further investigation and legal
10:20:06AM 19
processes, to then take that IP information and translate
10:20:09AM 20
it into identifying a person who is trafficking in child
10:20:12AM 21
pornography, or abusing a child and trafficking in child
10:20:14AM 22
pornography.
10:20:15AM 23
That's the purpose.
So it is in that context that the court has to view
10:20:20AM 24
the government's actions here.
And viewed in that light,
10:20:23AM 25
the necessity of identifying the perpetrators, not just

34
10:20:28AM
taking away one particular place where they can
10:20:31AM
perpetrate, but taking action -- where they had the
10:20:33AM
opportunity and the court authorization to do so, taking
10:20:38AM
that action to take that step to identify the victims,
10:20:45AM
justifies the -- again, combined with the court
10:20:48AM
authorization here, your Honor, justifies the actions
10:20:49AM
taken by law enforcement.
10:20:53AM
outrageous conduct by law enforcement.
10:20:55AM
law enforcement that is necessary to enforce the law.
10:21:00AM 10
In terms of the --
These are not --
It is not
This is conduct by
The defense has raised some issues
10:21:03AM 11
about the -- at times, about the legality of the actions
10:21:07AM 12
in terms of law enforcement taking enforcement actions
10:21:12AM 13
that when committed by a private citizen would be
10:21:15AM 14
otherwise illegal.
10:21:16AM 15
That is something that, of course, courts have
10:21:18AM 16
recognized, and have recognized for a long time that that
10:21:21AM 17
occurs, that in the course of enforcing laws, law
10:21:25AM 18
enforcement often commits actions that when committed by a
10:21:28AM 19
private citizen would otherwise be unlawful.
10:21:32AM 20
doesn't mean that law enforcement is not permitted to take
10:21:34AM 21
those sorts of actions during the course of enforcing the
10:21:37AM 22
law.
10:21:43AM 23
But that
And that is the context that we operated in here.
For the legal principle on that, your Honor, I would
10:21:46AM 24
point the court to United States versus Mack, that is 164
10:21:51AM 25
F.3d 467, particularly Page 472.
That is a 1999 Ninth

35
10:21:59AM
Circuit opinion.
Mack assessed a situation where local
10:22:03AM
law enforcement agencies were found to be able, without
10:22:07AM
committing crimes against other -- without committing
10:22:10AM
crimes against -- possession of prohibited weapons, that
10:22:15AM
in order to enforce the law they were permitted to possess
10:22:19AM
those, even where possession would be unlawful if done by
10:22:21AM
a private citizen, and then take action to prosecute
10:22:25AM
defendants.
10:22:27AM
The court recognized the longstanding principle, "The
10:22:31AM 10
law has long recognized the reach of a
10:22:33AM 11
strictly-constructed statute stops short of nonsensical
10:22:37AM 12
consequences.
10:22:40AM 13
statute shall be construed to exempt the government if
10:22:43AM 14
application of the statute to the government would create
10:22:45AM 15
an absurdity."
10:22:47AM 16
The Supreme Court has recognized that a
Here, in the context of the investigation of online
10:22:49AM 17
child pornography crimes, it is obviously necessary for
10:22:52AM 18
law enforcement to engage in actions that would -- when
10:22:56AM 19
performed by a private individual, would otherwise be
10:22:59AM 20
illegal.
10:23:00AM 21
For example, in order to review and document a
10:23:02AM 22
website, such as the one in this case, law enforcement has
10:23:05AM 23
to access it in an undercover capacity, and access child
10:23:09AM 24
pornography in an undercover capacity.
10:23:12AM 25
violation of law if done by a private individual.
That would be a

We
36
10:23:16AM
certainly don't look at that as a violation of the law
10:23:19AM
when done by an agent who is investigating a crime, and
10:23:21AM
taking that action during the course of the investigation.
10:23:23AM
Law enforcement has to document child pornography, receive
10:23:26AM
it, download it, possess it.
10:23:30AM
those federal statutes, if done -- all of those actions if
10:23:34AM
done by a private individual would be a violation of law.
10:23:37AM
But that is not the case where done under color of law by
10:23:40AM
a law enforcement agent during the course of an
And all of those actions and
10:23:43AM 10
investigation in order to investigate and to identify
10:23:48AM 11
particular criminals.
10:23:53AM 12
Honor.
10:23:54AM 13
I did want to make that point, your
On the necessity principle, and the defense has sort
10:24:00AM 14
of alluded to -- without really putting any particular
10:24:03AM 15
facts in the record, alluded to other actions short of
10:24:07AM 16
running the website that law enforcement could have taken.
10:24:10AM 17
And there is a common-sense principle here regarding
10:24:13AM 18
that, your Honor.
And so the defense suggests, you know,
10:24:16AM 19
if the government had just made all of the child
10:24:19AM 20
pornography on the website inaccessible, it could have
10:24:22AM 21
then gone on with the enforcement there.
10:24:25AM 22
sense principle, your Honor, says where users for months
10:24:29AM 23
upon months have been able to freely access and distribute
10:24:33AM 24
child pornography through the site, and then one day that
10:24:35AM 25
site has all of a sudden completely different
Well, a common

37
10:24:38AM
functionality and no longer presents any ability to access
10:24:41AM
those sorts of materials, well, that would be a tip-off,
10:24:44AM
and a tip-off to law enforcement infiltration.
10:24:49AM
don't believe it is a reasonable --
10:24:51AM
common-sense principle, it is certainly understandable
10:24:53AM
that the functionality of a site like this would need to
10:24:56AM
remain intact in order to give law enforcement the
10:25:00AM
opportunity to identify the perpetrators, who would be
10:25:02AM
likely scared away or would stop using the facility if it
10:25:07AM 10
10:25:11AM 11
And so I
Just from a
turned into something that it wasn't before.

That's the heart of the reason why it needed to remain
10:25:14AM 12
operating in a similar manner, and in the manner in which
10:25:19AM 13
it had been operating for months and months and months, in
10:25:23AM 14
order to give law enforcement the opportunity to take the
10:25:25AM 15
court-authorized actions to actually identify the
10:25:28AM 16
end-users who were involved in the crimes that were being
10:25:32AM 17
investigated.
10:25:33AM 18
Just a couple of points in terms of specific arguments
10:25:40AM 19
by the defendant.
There was a statement that the defense
10:25:48AM 20
was not -- was not aware, or might not have been aware,
10:25:51AM 21
that law enforcement in prior cases has in fact taken
10:25:54AM 22
these sorts of actions on websites -- on child pornography
10:25:58AM 23
websites and on the Tor network.
10:26:01AM 24
is in fact a matter of public record that law enforcement
10:26:04AM 25
has in the past seized child pornography websites, allowed
And it is correct -- it

38
10:26:08AM
them to continue to operate in a government facility,
10:26:12AM
gotten court authority to deploy a network investigative
10:26:16AM
technique, and gotten court authority to conduct Title III
10:26:20AM
monitoring.
10:26:21AM
10:26:23AM
am not sure of the source of the confusion.
10:26:25AM
defense actually attached a warrant authorizing just that
10:26:28AM
from the Nebraska case that both parties have cited a
10:26:32AM
number of times.
The defense has been aware of this for some time.
But the
And that warrant authorized a network
10:26:35AM 10
investigative technique involving a website takeover,
10:26:38AM 11
disclosed to the court that law enforcement was going to
10:26:41AM 12
operate that site in order to conduct the monitoring and
10:26:44AM 13
deploy the NIT.
10:26:47AM 14
from.
10:26:49AM 15
I am not sure where the confusion comes
But it is certainly the case that law enforcement has
10:26:52AM 16
taken actions like this in the past.
10:26:55AM 17
with court approval.
10:26:59AM 18
investigative technique, court approval to conduct T III
10:27:02AM 19
monitoring to monitor users' communications.
10:27:06AM 20
And, again, done it
Court approval to deploy the
And those cases -- the Omaha cases have been publicly
10:27:11AM 21
reported.
There have been trials that are held in public
10:27:13AM 22
regarding those investigations and a number of individuals
10:27:17AM 23
convicted in the District of Nebraska regarding those
10:27:20AM 24
cases.
10:27:25AM 25
the defense has cited to a number of times through the
Again, a matter of public record.
And one that

39
10:27:28AM
course of our various pleadings in this case.
10:27:30AM
As to the interplay of probable cause to the motion to
10:27:48AM
dismiss, your Honor, I am not sure exactly how that really
10:27:53AM
comes into play, other than to say that certainly the
10:27:57AM
magistrate who issued the NIT warrant found probable
10:28:02AM
cause.
10:28:05AM
found cause to issue that and to allow that technique.
10:28:11AM
10:28:14AM
The district judge who issued the wiretap warrant
And I can tell your Honor, and I have disclosed this

to the defense, there is and will be issued, I believe
10:28:17AM 10
today, in the Eastern District of Wisconsin, a report and
10:28:21AM 11
recommendation by a magistrate judge regarding a motion to
10:28:24AM 12
suppress involving the NIT warrant in this case, in which
10:28:28AM 13
that magistrate judge, reviewing a probable cause
10:28:31AM 14
challenge to this NIT warrant, found that the warrant
10:28:34AM 15
sufficiently established probable cause.
10:28:38AM 16
a copy to counsel and to the court as soon as that becomes
10:28:40AM 17
available on the docket.
10:28:43AM 18
We will provide
But that court reviewing this same NIT warrant came to
10:28:46AM 19
the conclusion that it did articulate probable cause to
10:28:49AM 20
deploy the technique, sufficiently established probable
10:28:53AM 21
cause.
10:28:57AM 22
that suppression was unwarranted in the case based on the
10:29:01AM 23
government's conduct, which it found to be reasonable.
10:29:04AM 24
will present that to the court, again, once it is
10:29:07AM 25
available.
It also found, with respect to a Rule 41 argument,

We
40
10:29:07AM
To the extent we are talking about probable cause and
10:29:11AM
findings of probable cause based on what is articulated in
10:29:14AM
the NIT warrant here, that is such a finding by another
10:29:16AM
magistrate, in addition to, of course, the issuing
10:29:19AM
magistrate who found so here.
10:29:24AM
10:29:35AM
the argument, we will be addressing the particular
10:29:39AM
suppression issues separately --
10:29:41AM
So I gather, your Honor, just in terms of the rest of
THE COURT:
10:29:43AM 10
It is a different issue.
MR. BECKER:
Very well.
If I could have the
10:29:52AM 11
court's indulgence to just consult briefly with colleagues
10:29:55AM 12
before I conclude?
10:29:56AM 13
THE COURT:
You know, I asked in my order setting
10:30:00AM 14
this hearing up for brief argument on the motion to
10:30:03AM 15
dismiss.
10:30:06AM 16
on this motion yet.
10:30:11AM 17
MR. BECKER:
10:30:13AM 18
I haven't heard anything brief from either side
Very well.
I will conclude, your
Honor.
10:30:13AM 19
THE COURT:
I have heard what you have said.
You
10:30:16AM 20
guys have to bear in mind I read your briefs, you know.
10:30:20AM 21
have read them twice.
10:30:24AM 22
your briefs.
10:30:24AM 23
Mr. Fieman, do you have any response?
10:30:27AM 24
10:30:30AM 25
You don't have to repeat what's in
MR. FIEMAN:
Honor.
Not without repeating myself, your
One brief point.
Two brief points.
One is this,

41
10:30:34AM
your Honor:
You can search in vain every one of those
10:30:38AM
Nebraska warrants, the NIT warrant, any of the warrants,
10:30:41AM
and you will not find a single reference to the government
10:30:44AM
continuing to distribute pornography as part of their
10:30:47AM
investigation.
10:30:48AM
10:30:51AM
government can take over websites and collect identifying
10:30:54AM
data in that process.
10:30:57AM
Judge Buchanan to do, to collect the IP address at log-in.
10:31:03AM 10
Nowhere in any of these cases have they disclosed in their
10:31:06AM 11
warrants that they intended to continue to actively
10:31:08AM 12
distribute child pornography.
10:31:11AM 13
it is appalling, because there is in fact no investigatory
10:31:14AM 14
need.
10:31:18AM 15
site and the extra step of allowing people to post and
10:31:22AM 16
distribute.
It has been routine --
And we do not dispute that the
In fact, that's what they asked
That is a revelation, and
It is a false choice between shuttering down this
10:31:23AM 17
The other very brief thing I would say, your Honor,
10:31:29AM 18
that really goes to the crux of both the PC and outrageous
10:31:34AM 19
conduct, because if the government is alleging that they
10:31:37AM 20
have probable cause to collect the IP address at log-in,
10:31:41AM 21
they have accomplished their investigatory goal.
10:31:45AM 22
is a separate issue whether PC is in fact established, and
10:31:48AM 23
we will further address that during the course of the
10:31:50AM 24
later arguments, your Honor.
10:31:52AM 25
THE COURT:
Now it
This is a motion to dismiss based on

42
10:31:56AM
outrageous government conduct, as moved in Docket 50 by
10:32:07AM
the defense.
10:32:11AM
the government did the right thing or whether the
10:32:19AM
government made errors, or whether the showing was
10:32:24AM
sufficient on the warrants, or whether evidence collected
10:32:28AM
on the basis of the warrant should be suppressed.
10:32:32AM
question of whether the government's conduct in this whole
10:32:36AM
process is so grossly shocking and so outrageous as to
10:32:41AM
violate the universal sense of justice, and offend canons
This does not require an analysis of whether
It is a
10:32:51AM 10
of decency and fairness, violate notions of justice.
10:32:58AM 11
motion has not reached that standard that the defense
10:33:07AM 12
would have to show.
10:33:09AM 13
I just have a couple of comments about it.
This
First, the
10:33:15AM 14
government did, from what I have read here, seize and
10:33:23AM 15
control a website that contained child pornography, and
10:33:25AM 16
kept it alive.
10:33:33AM 17
control, as the statute requires that they handle evidence
10:33:37AM 18
of child pornography.
10:33:41AM 19
but it is arguable, and a reasonable position to take,
10:33:46AM 20
that they controlled that site consistent with that
10:33:49AM 21
statute.
10:33:53AM 22
Arguably that was under the government's
I mean, you can argue about that,
We will investigate further today the motion to
10:34:06AM 23
suppress.
But in the government's seeking of warrants and
10:34:16AM 24
seizing of evidence, the evidence shows that they were
10:34:24AM 25
trying to catch the bad guys, so to speak, that they were

43
10:34:30AM
doing their work as law enforcement agents.
10:34:34AM
did it right is a different thing.
10:34:38AM
so wrong as to be grossly shocking or outrageous to
10:34:44AM
violate the universal sense of justice.
10:34:48AM
10:34:54AM
kinds of cases, that the other side's position is
10:34:57AM
outrageous.
10:35:08AM
the standpoint of one who stands between the defendant and
10:35:11AM
the government, and represents neither side, you look at
But they didn't do it
It is easy to argue, and, my gosh, we hear it in all
Well, you know, that's a high standard.
10:35:18AM 10
what happened and look inward.
10:35:26AM 11
I did not find it outrageous.
10:35:32AM 12
Whether they
I am not shocked by this.
Whether there are grounds to suppress evidence here is
10:35:35AM 13
an entirely different issue, but there is no basis to
10:35:43AM 14
dismiss the indictment based on outrageous conduct.
10:35:46AM 15
motion made in Docket 50 is denied.
10:35:57AM 16
That
I guess the next issue to address is the evidentiary
10:36:13AM 17
hearing, if necessary, and argument on the motions to
10:36:17AM 18
suppress.
10:36:23AM 19
documents, Dockets 26, 50, and 65.
10:36:36AM 20
From
Those motions are made in three separate
The government has the burden of going forward on this
10:36:39AM 21
issue.
I guess I would like to know what you anticipate
10:36:44AM 22
showing, and would ask you for a brief, brief, like five
10:36:52AM 23
minutes, opening statement.
10:37:04AM 24
am mindful of the issues that I anticipate you will be
10:37:08AM 25
generally addressing.
You can bear in mind that I
I am more curious as to how you

44
10:37:12AM
propose to proceed and what you propose to show.
10:37:15AM
10:37:18AM
that we are in a scenario where the court has denied the
10:37:21AM
request for a Franks hearing, and the defense, I believe,
10:37:24AM
is taking the position that the issues related to
10:37:28AM
suppression can be decided based upon the paper record.
10:37:32AM
So I think that would be our intent in proceeding.
10:37:35AM
10:37:39AM
MR. BECKER:
Understood, your Honor.
It appears
Now, this is a bit of a shift in the footing.
We
certainly are available to present testimony, but at this
10:37:44AM 10
point I think we would intend to proceed on the paper
10:37:47AM 11
record.
10:37:51AM 12
agree can be entered as a part of the proceeding
10:37:54AM 13
pertaining to warrant documents and the like, and perhaps
10:38:00AM 14
some others that I think we agreed on that can be put into
10:38:05AM 15
the record.
10:38:06AM 16
There are exhibits that I think both parties will
THE COURT:
I have some questions for somebody,
10:38:08AM 17
maybe counsel can answer them, about how this worked.
10:38:14AM 18
am not asking for an evidentiary showing.
10:38:18AM 19
to have the opportunity to make whatever showing you feel
10:38:20AM 20
is necessary.
10:38:25AM 21
MR. BECKER:
I just want you
In terms of the suppression issues, I
10:38:29AM 22
think we intend to stand on the paper record and argue
10:38:34AM 23
from the documents.
10:38:37AM 24
THE COURT:
10:38:39AM 25
MR. FIEMAN:
Okay.
Unless there are questions that I

45
10:38:41AM
can't answer and our expert can, your Honor, I would ask
10:38:45AM
the court to proceed on the paper record.
10:38:48AM
the court if there is something beyond that scope.
10:38:52AM
10:38:55AM
to anything else.
10:39:05AM
order setting up this hearing.
10:39:24AM
the authority to attach this NIT to the website, how do
10:39:34AM
you do that?
10:39:38AM
make keystrokes to make that happen?
THE COURT:
10:39:43AM 10
I will alert
Let me ask these questions preliminary

Not the questions that I raised in my
When the government got
Does somebody sit down on a computer and
MR. FIEMAN:
How is that done?
Your Honor, I can tell you, based on
10:39:45AM 11
that question alone, we will need testimony from
10:39:50AM 12
Mr. Soghoian on the part of the defense.
10:39:52AM 13
capable of saying this in layman terms, but I do not want
10:39:56AM 14
him to state the process.
10:39:58AM 15
THE COURT:
He is quite
Anyway, I am curious about that.
And
10:40:04AM 16
then once it is attached to the website, and it goes
10:40:16AM 17
out -- as I understand it, then it goes out to users of
10:40:23AM 18
the website who have to sign in.
10:40:26AM 19
it pick up whatever information it is going to pick up
10:40:29AM 20
automatically, or when they enter into that website are
10:40:40AM 21
they directed to enter some other information by this NIT,
10:40:49AM 22
or does it happen automatically without any additional
10:40:55AM 23
entries?
10:40:57AM 24
10:40:59AM 25
MR. FIEMAN:
When they sign in, does
I can give you a brief response to
all three, your Honor.
The first question is how is the

46
10:41:14AM
NIT programmed.
10:41:16AM
typically in NIT cases, what it is is a set of code
10:41:20AM
components that work in conjunction to do really a very
10:41:23AM
simple thing.
10:41:30AM
homepage, that activity triggers -- either automatically
10:41:34AM
or by an agent monitoring the log-in, we do not know yet,
10:41:39AM
but, regardless, at the point of sign-in this code is sent
10:41:45AM
from the Virginia server to the target computer, in this
10:41:50AM
case allegedly Mr. Michaud's.
10:41:54AM 10
10:41:57AM 11
That is part of what we don't know.
When a user signs -- is signed into the
That code breaks through any security barriers that

might impede it --
10:42:01AM 13
THE COURT:
10:42:07AM 15
10:42:10AM 16
10:42:11AM 17
10:42:14AM 18
MR. FIEMAN:
What does
What he is alleged to have done is
signed into the website.

THE COURT:
As always, or per usual, or does he
have to enter in some other information?

MR. FIEMAN:
10:42:18AM 20
THE COURT:
10:42:22AM 22
You know, I know that.
Mr. Michaud do?
10:42:17AM 19
10:42:20AM 21
And that is what it is, it
is code, it is data.
10:42:01AM 12
10:42:05AM 14
But
No.
Does it tell him, to get in, you have
to do one, two, three?

MR. FIEMAN:
The homepage has like a user name, as
10:42:25AM 23
you log into anything, like email.
So there are about a
10:42:29AM 24
hundred thousand people who are logging in.
10:42:32AM 25
they are typing in their log-in at that homepage, the NIT
At the moment

47
10:42:36AM
is sent to the target computer and begins extracting data
10:42:40AM
here in Washington.
10:42:41AM
10:42:45AM
10:42:46AM
10:42:57AM
10:42:59AM
10:43:14AM
to look at the NIT information other than going to the
10:43:24AM
server?
THE COURT:
part of the user?
MR. FIEMAN:
10:43:30AM 12
10:43:33AM 13
10:43:35AM 14
10:43:38AM 15
None whatsoever.
Did I address your
questions so far?
THE COURT:
10:43:28AM 10
10:43:29AM 11
Without any additional action on the
MR. FIEMAN:
Yes.
Do the FBI experts have any way
Your Honor, they don't go to the
server.
THE COURT:
Where do they go?
How do they get the
information?
MR. FIEMAN:
They get it from Mr. Michaud's
computer.
10:43:38AM 16
THE COURT:
10:43:41AM 17
MR. FIEMAN:
10:43:43AM 18
THE COURT:
They don't have his computer.

That's what the NIT is for.
His information --
You see, this is
10:43:45AM 19
what is confusing to me.
10:43:50AM 20
the search occurred.
10:44:00AM 21
you need to call a witness on these things.
10:44:03AM 22
MR. BECKER:
It has a lot to do with where
How do they find information?
Maybe
Our lawyer argument is one thing, in
10:44:08AM 23
terms of explaining the network investigative technique.
10:44:13AM 24
I do think we need to be clear on the record the footing
10:44:16AM 25
and how, if at all, these questions play into the court

48
10:44:21AM
authorization and the particular -- any particular
10:44:26AM
challenges to it, so that, I guess, we know -- actually,
10:44:30AM
the government knows what footing we are on so we can
10:44:33AM
elect to present testimony and what that is pertinent to.
10:44:37AM
10:44:45AM
10:44:49AM
10:44:53AM
10:44:54AM
Certainly the warrant itself and the affidavit does

give an explanation of how the NIT will work and operate.
THE COURT:
It doesn't explain the things I am
asking about.
MR. BECKER:
Some of them are addressed, your
10:44:56AM 10
Honor.
If I could just have --
10:45:32AM 11
to Paragraph 33 on Page 24 of the NIT warrant.
10:45:39AM 12
THE COURT:
10:45:46AM 13
MR. BECKER:
10:45:48AM 14
That is the Rule 41 application?

Correct.
This is Exhibit 1 to
Government Docket No. 47.
10:45:50AM 15
THE COURT:
10:45:52AM 16
MR. BECKER:
10:45:57AM 17
THE COURT:
10:46:01AM 18
Your Honor, I would point
Page and line again.

Page 24, Paragraph 33.
24 at the top, the docket pages, or 24
at the bottom?
10:46:03AM 19
MR. BECKER:
10:46:15AM 20
THE COURT:
10:46:17AM 21
MR. BECKER:
Sorry.
24 at the bottom, your Honor.
Paragraph 33.
Yes, your Honor.
And that does give
10:46:19AM 22
a description of how the process of the NIT operates.
10:46:25AM 23
that is, "In the normal course of operation websites sent
10:46:28AM 24
content to visitors."
10:46:29AM 25
THE COURT:
Just a minute.
Let me read it.

And
49
10:46:32AM
MR. BECKER:
10:47:01AM
THE COURT:
10:47:03AM
I don't understand fully.
10:47:13AM
Under the NIT authorization the website would augment that
10:47:20AM
content with additional computer instructions.
10:47:27AM
user's computer successfully downloads those instructions
10:47:33AM
it causes the computer -- the activating computer to
10:47:41AM
transmit certain information.
10:47:43AM
has to download some instructions in addition to just
10:47:47AM 10
10:47:50AM 11
Yes, your Honor.

You see, that is the kind of paragraph
And I am trying to understand.
When a
That sounds like the user
signing into the website.

MR. BECKER:
The warrant specifically authorized
10:47:52AM 12
the government to deploy the NIT to any user who did log
10:47:59AM 13
into the website with a user name and a password.
10:48:02AM 14
the authorization permitted the government to deploy the
10:48:06AM 15
NIT to any user who went that far.
10:48:07AM 16
10:48:09AM 17
THE COURT:
MR. BECKER:
10:48:12AM 19
THE COURT:
10:48:20AM 21
I am trying to find out
how this works.
10:48:11AM 18
10:48:16AM 20
I know that.
And so
Understood.
So what does the user do?
Are there
new instructions when he signs into the website?

MR. BECKER:
Yes, your Honor.
That's what the
10:48:25AM 22
word "augment" references, is that in addition to the
10:48:28AM 23
instructions --
10:48:28AM 24
THE COURT:
10:48:31AM 25
MR. BECKER:
What do the instructions say?

The use of the word "augment" means

50
10:48:37AM
that these are additional instructions beyond the normal
10:48:40AM
instructions that would be on the website.
10:48:45AM
That is articulated.
10:48:47AM
The specific instructions -- what the instructions
10:48:50AM
are, what the code is, is not articulated in the warrant,
10:48:53AM
that is correct.
10:48:56AM
articulated in the warrant is that there are computer
10:48:59AM
instructions that are sent to the user's computer, the
10:49:03AM
activating computer, and that causes, as articulated in
The computer code is not.
We do think --
What is
10:49:06AM 10
the warrant, the activating computer to send the specified
10:49:09AM 11
information --
10:49:11AM 12
THE COURT:
10:49:13AM 13
He signs into the website?
10:49:16AM 14
MR. BECKER:
10:49:18AM 15
THE COURT:
Let's talk about what the user does.
Yes.
Now, does the website send him these
10:49:21AM 16
instructions that he has to enter more things in
10:49:26AM 17
compliance with those instructions?
10:49:30AM 18
wrong guys here.
10:49:32AM 19
10:49:34AM 20
10:49:37AM 21
MR. FIEMAN:
Honor.
I am talking to the
I can't answer this question, your
It is just that I don't think Mr. Becker wants to.

MR. BECKER:
Your Honor, at this point I want to
10:49:41AM 22
make argument from the warrant itself.
10:49:44AM 23
important.
10:49:45AM 24
10:49:47AM 25
And I do believe --
THE COURT:
warrant yet.
I do think that is
We are not to argument from the
We are still at the point of trying to find

51
10:49:50AM
out what happened.
10:49:56AM
works.
10:50:04AM
10:50:09AM
10:50:09AM
10:50:11AM
want to know what the user has to do to trigger this NIT,
10:50:19AM
if anything.
10:50:28AM
to find out where -- the information that the NIT
10:50:34AM
provides, how does he get that?
MR. BECKER:
I want to know what happened, how it
Can I have a quick moment to confer
with counsel?
THE COURT:
It is time we took a break anyway.
Then I want to know what does the FBI guy do
I suppose there is
10:50:37AM 10
somebody sitting in a cubicle somewhere with a keyboard
10:50:42AM 11
doing this stuff.
10:50:51AM 12
the clouds, and the clouds rain information.
10:50:55AM 13
know.
10:50:56AM 14
MR. BECKER:
I don't know that.
It may be they seed
I don't
While we are
10:50:58AM 15
breaking, are there other questions that your Honor has?
10:51:03AM 16
I can confer --
10:51:03AM 17
10:51:06AM 18
THE COURT:
MR. BECKER:
10:51:15AM 20
THE COURT:
11:10:21AM 22
Those are the main ones.
There may be
others that come to mind as we argue this matter.
10:51:09AM 19
11:10:21AM 21

We will reconvene shortly after 11:00.
(Break.)
THE COURT:
My staff says they think these
11:10:23AM 23
instructions are computers talking to each other, and that
11:10:28AM 24
the information is sent from the user's computer back
11:10:38AM 25
without the user making any additional computer

52
11:10:41AM
11:10:44AM
MR. BECKER:
11:10:46AM
THE COURT:
11:10:47AM
MR. FIEMAN:
11:10:51AM
THE COURT:
11:10:56AM
when Mr. FBI Agent wants to see if anybody signed in?
11:11:07AM
they put the NIT on here, he goes home for the night, some
11:11:12AM
FBI agents sleep, but not much, and he comes in in the
11:11:18AM
morning.
11:11:23AM 10
keystrokes.
Right?
That's correct, your Honor.
Do you agree?
Yes, your Honor.
My next question then is, what happens
So
What does he do to see if there is any
information on there?
11:11:23AM 11
MR. BECKER:
Let me first articulate, your Honor,
11:11:26AM 12
as we have articulated in our filing in response to the
11:11:29AM 13
motion to compel, the site was monitored 24 hours a day,
11:11:34AM 14
seven days a week, while it was in FBI control.
11:11:36AM 15
not a point where this site was being operated --
11:11:40AM 16
administered by the FBI that it was not being monitored by
11:11:44AM 17
the FBI.
11:11:45AM 18
11:11:47AM 19
11:12:00AM 20
11:12:02AM 21
11:12:05AM 22
11:12:08AM 23
11:12:09AM 24
11:12:12AM 25
THE COURT:
to the restroom?
There was
You mean they don't even get up and go

Regardless, what happens on the FBI end?
MR. BECKER:
The information that is returned by
the NIT is delivered to an FBI computer.

THE COURT:
And how does the FBI agent get that
information?
MR. BECKER:
That information is loaded into a
system that turns it into a report, and then those reports

53
11:12:16AM
are generated.
That report --
11:12:20AM
into evidence Exhibit 15.
11:12:26AM
particular user all of the actions that the user took on
11:12:29AM
the website.
11:12:30AM
11:12:33AM
11:12:36AM
11:12:38AM
11:12:38AM
THE COURT:
Actually, I can proffer
That report contains for a
How does the FBI agent get that
information?
MR. BECKER:
From the FBI computer on which it is
stored.
THE COURT:
So he has to sit at his computer and
11:12:41AM 10
make some keystrokes for this to come up, or open his
11:12:47AM 11
computer, or something?
11:12:52AM 12
MR. BECKER:
In order to access the data that is
11:12:55AM 13
stored on the computer, yes, you would have to go on to
11:12:58AM 14
that computer and see, okay, what information was
11:13:00AM 15
returned.
11:13:03AM 16
provided.
11:13:03AM 17
And that is generated into reports that we have
THE COURT:
11:13:08AM 18
she is now looking?
11:13:17AM 19
MR. BECKER:
Where is that information that he or
At the time the data is returned it
11:13:19AM 20
is on the government's computer in Virginia, the computer
11:13:22AM 21
to which that information is returned.
11:13:24AM 22
THE COURT:
Does he have any ability to go back to
11:13:29AM 23
the user's computer and look in there, see what else he
11:13:33AM 24
can find?
11:13:39AM 25
MR. BECKER:
No, your Honor.
We can put on

54
11:13:44AM
testimony regarding these questions.
11:13:52AM
clear, this was not something that sat on the user's
11:13:55AM
computer.
11:13:59AM
some of these questions, your Honor.
11:14:01AM
probably the best way forward.
11:14:02AM
11:14:05AM
11:14:06AM
11:14:09AM
Let me --
THE COURT:
As the warrant makes
We can put on testimony to clarify

I think that is
If you want to, I would like to know
how this works.

MR. BECKER:
Indeed.
Just for the court's benefit, and I don't mean for us to
11:14:12AM 10
be obstreperous at all, there may be questions or areas
11:14:16AM 11
where if it involves a level of detail about information
11:14:20AM 12
pertaining to the network --
11:14:22AM 13
THE COURT:
I don't want the detail.
It wouldn't
11:14:24AM 14
mean anything to me anyway.
11:14:30AM 15
know that if you want to see something on your computer,
11:14:34AM 16
you have to turn it on and hit the right strokes, or else
11:14:39AM 17
you are just in there playing solitaire or something.
11:14:46AM 18
don't care what the strokes are.
11:14:51AM 19
I just want to know what's available and how they would do
11:14:55AM 20
it.
11:14:55AM 21
11:15:00AM 22
23
MR. BECKER:
But I understand enough to
I don't care about that.
At this time we would call Special
Agent Dan Alfin to the stand.

DANIEL ALFIN
11:15:40AM 24
Having been sworn under oath, testified as follows:
11:15:40AM 25
DIRECT EXAMINATION

55
11:15:42AM
By Mr. Becker:
11:15:43AM
Q.
Please state and spell your full name for the record.
11:15:45AM
A.
My name is Daniel Alfin, D-A-N-I-E-L, A-L-F-I-N.
11:15:54AM
Q.
What do you do for a living?
11:15:55AM
A.
I am a special agent with the FBI.
11:15:59AM
assigned to FBI headquarters, criminal investigative
11:16:04AM
division, violent crimes against children section, major
11:16:07AM
case coordination unit, located in Linthicum, Maryland.
11:16:12AM
Q.
And how long have you been with the FBI?
11:16:15AM 10
A.
I have been employed with the FBI for approximately
11:16:18AM 11
six years.
11:16:18AM 12
Q.
11:16:24AM 13
case coordination unit?
11:16:26AM 14
A.
11:16:30AM 15
investigations of online child exploitation offenders that
11:16:34AM 16
typically have a nationwide or international nexus.
11:16:37AM 17
Q.
11:16:41AM 18
the FBI?
11:16:42AM 19
A.
11:16:45AM 20
unit since approximately July 2014.
11:16:49AM 21
Q.
11:16:52AM 22
within that unit?
11:16:53AM 23
A.
11:16:57AM 24
coordination unit I routinely conduct investigations of
11:17:01AM 25
offenders who utilize sophisticated technology to
I am currently
What are the responsibilities of your unit, the major
The major case coordination unit conducts large-scale
For how long have you been in that particular unit of
I have been assigned to the major case coordination
What sorts of roles and responsibilities do you have
In my role as a special agent at the major case

56
11:17:06AM
obfuscate or cover up their child exploitation activities.
11:17:11AM
A significant amount of my time at the major case
11:17:14AM
coordination unit has been dedicated to investigating
11:17:17AM
child sex offenders who utilize the Tor network to engage
11:17:22AM
in the advertisement, distribution, and production of
11:17:25AM
child pornography.
11:17:25AM
Q.
11:17:30AM
websites on the Tor network in an undercover capacity?
11:17:34AM
A.
Have you accessed websites -- child pornography
I have.
I have accessed, documented, and reviewed
11:17:37AM 10
numerous websites that exist and have existed on the Tor
11:17:41AM 11
network, whose primary purposes were the advertisement and
11:17:45AM 12
distribution of child pornography.
11:17:46AM 13
Q.
11:17:51AM 14
investigation of the website that is pertinent to this
11:17:55AM 15
case, that we have referred to as Website A?
11:17:58AM 16
A.
I did.
11:17:58AM 17
Q.
Can you just go back and just describe --
11:18:04AM 18
you become aware of Website A, initially?
11:18:06AM 19
A.
11:18:11AM 20
when it came online.
11:18:16AM 21
Website A were advertised on multiple websites, whose
11:18:20AM 22
purposes were the advertisement of websites dedicated to
11:18:25AM 23
the advertisement and distribution of child pornography.
11:18:28AM 24
11:18:35AM 25
Special Agent Alfin, did you participate in the
How did
I became aware of Website A approximately August 2014

At that point in time links to
After I saw the link to Website A come online, I

accessed it and observed that it was in fact a website

57
11:18:37AM
whose primary purpose was the advertisement and
11:18:40AM
distribution of child pornography.
11:18:42AM
on multiple occasions between August 2014 and March 2015.
11:19:11AM
11:19:13AM
an evidence binder available.
11:19:16AM
exhibits that we will present.
11:19:18AM
court has that in front of him.
11:19:28AM
By Mr. Becker:
11:19:28AM
Q.
MR. BECKER:
I reviewed the website
Your Honor, I believe the court has

There are a couple of
I want to make sure the
Special Agent Alfin, I would direct your attention to
11:19:31AM 10
Exhibit 12A.
11:19:35AM 11
A.
I do.
11:19:36AM 12
Q.
What does Exhibit 12A depict?
11:19:50AM 13
A.
In early February 2015 an FBI agent at the major case
11:19:55AM 14
coordination unit accessed Website A in an undercover
11:20:00AM 15
capacity.
11:20:03AM 16
Website A as it appeared during that time.
11:20:07AM 17
those screen captures.
11:20:10AM 18
Website A prior to logging into the website.
11:20:16AM 19
Do you have the book in front of you?
That agent took multiple screen captures of
MR. BECKER:
This is one of
And it depicts the front page of
Your Honor, with the court's
11:20:17AM 20
indulgence --
Well, first, I would move to admit
11:20:20AM 21
Exhibit 12A, and then to publish via the computer a copy
11:20:24AM 22
of that exhibit.
11:20:26AM 23
MR. FIEMAN:
11:20:27AM 24
THE COURT:
11:20:41AM 25
No objection, your Honor.

All right.
It may be admitted.
(Exhibit No. 12A was admitted.)

58
11:20:41AM
By Mr. Becker:
11:20:42AM
Q.
Special Agent Alfin, can you see 12A on your screen?
11:20:50AM
A.
I can.
11:20:50AM
Q.
How would the user go about logging into the website?
11:20:54AM
A.
A user who wanted to log into Website A would have to
11:20:59AM
either log into Website A with a previously established
11:21:04AM
user name and password, or they would have to click on the
11:21:09AM
words that say "register an account."
11:21:14AM
would be taken to the registration screen, where they
At that point they
11:21:17AM 10
would have to create a user name and password in order to
11:21:20AM 11
log into the website.
11:21:21AM 12
Q.
If you can turn in your book to Exhibit 12B?
11:21:38AM 13
A.
I have the exhibit in front of me.
11:21:40AM 14
Q.
What is Exhibit 12B?
11:21:41AM 15
A.
Exhibit 12B shows the index that a user would be
11:21:47AM 16
directed to after logging into Website A with a user name
11:21:52AM 17
and password.
11:21:56AM 18
available within Website A for users to access and
11:22:01AM 19
distribute content.
11:22:04AM 20
MR. BECKER:
11:22:07AM 21
The index displays all of the forums
to publish.
11:22:08AM 22
MR. FIEMAN:
11:22:09AM 23
THE COURT:
11:22:10AM 24
11:22:10AM 25
Your Honor, I move to admit 12B and
No objection.
It may be admitted.
(Exhibit No. 12B was admitted.)

By Mr. Becker:

59
11:22:24AM
Q.
11:22:30AM
number of words in purple type.
11:22:34AM
A.
11:22:42AM
If a user were to click on one of those purple words they
11:22:46AM
would be directed to that particular forum on Website A.
11:22:52AM
For example, referring to this exhibit, one of the links
11:22:59AM
is under the heading "Preteen Photos," and it is titled,
11:23:05AM
"Girls HC."
11:23:07AM
Q.
Special Agent Alfin, on Exhibit 12B, there are a

What are those called?
Those are the various forums available on Website A.
Scroll down on the digital version.
Do you see the
11:23:20AM 10
particular forum you just mentioned, "Girls HC"?
11:23:24AM 11
A.
I do.
11:23:25AM 12
Q.
Can you point it out on the monitor?
11:23:29AM 13
A.
(Indicating.)
11:23:40AM 14
Q.
First, the designation "HC," what does that
11:23:45AM 15
reference?
11:23:45AM 16
A.
11:23:51AM 17
a common abbreviation for hardcore, which refers to
11:23:56AM 18
penatrative sexual activity.
11:24:00AM 19
Q.
11:24:10AM 20
within?
11:24:10AM 21
A.
11:24:13AM 22
indicating that these forums purport to advertise and
11:24:17AM 23
distribute images and videos of prepubescent children
11:24:23AM 24
engaged in hardcore sexual activity.
11:24:25AM 25
Q.
In the context of a website, such as Website A, HC is
And what broader set of forums is that "Girls HC"
That is under the heading of, "Preteen Videos,"
If a user clicked on the word -- clicked on that word

60
11:24:35AM
"Girls HC" on the website, what would happen?
11:24:37AM
A.
11:24:44AM
Preteen Videos - Girls Hardcore forum, and they would see
11:24:47AM
a listing on their screen all of the topics currently
11:24:49AM
available in that forum.
11:24:51AM
Q.
When you say "topics," what does that mean?
11:24:53AM
A.
An individual topic within the forum would contain
11:24:59AM
links to images and videos of a particular set of images
11:25:03AM
At that point the user would be directed to the
In addition to being able to access
11:25:07AM 10
one of these posts, after entering the forum a user would
11:25:10AM 11
also have the option to create a new post and share links
11:25:14AM 12
to images and videos of child pornography.
11:25:23AM 13
THE COURT:
11:25:26AM 14
I have read about.
11:25:29AM 15
MR. BECKER:
It seems to me this is all stuff that
Indeed, your Honor.
We were just
11:25:31AM 16
trying to present some background to get to the questions
11:25:35AM 17
that your Honor had, just in terms of how the site
11:25:38AM 18
functioned.
11:25:38AM 19
THE COURT:
11:25:41AM 20
MR. BECKER:
Move right along, counsel.

Indeed, your Honor.
11:25:42AM 21
By Mr. Becker:
11:25:45AM 22
Q.
11:25:48AM 23
general operation of the network investigative technique
11:25:52AM 24
that was deployed on this website between February 20th
11:25:55AM 25
and March 4th?
Special Agent Alfin, were you familiar with the

61
11:25:56AM
A.
I am.
11:25:57AM
Q.
Were reports generated regarding users, including
11:26:04AM
their activity, and information that was collected by the
11:26:07AM
NIT?
11:26:08AM
A.
Yes.
11:26:09AM
Q.
Was such a report mailed for the user Pewter,
11:26:14AM
P-E-W-T-E-R?
11:26:20AM
A.
Yes.
11:26:20AM
Q.
Your Honor --
11:26:22AM 10
11:26:26AM 11
Special Agent Alfin, can you look at Government's

Exhibit 15?
11:26:27AM 12
11:26:30AM 13
MR. BECKER:
Your Honor, I think that is a DVD
disk that might be in your Honor's binder.
11:26:41AM 14
THE COURT:
There is a disk here.
11:26:42AM 15
By Mr. Becker:
11:26:42AM 16
Q.
Are you familiar with Government's Exhibit 15?
11:26:45AM 17
A.
I am.
11:26:48AM 18
copy of the user accounts for the user Pewter.
11:26:55AM 19
Q.
11:27:02AM 20
11:27:04AM 21
That is a disk that I created that contains a
If you can turn to Exhibit 15A in your book.

MR. BECKER:
First, I would move to admit
Exhibit 15.
11:27:11AM 22
MR. FIEMAN:
No objection.
11:27:13AM 23
MR. BECKER:
We would move to admit that under
11:27:15AM 24
seal, because it does contain contraband child
11:27:19AM 25
pornography.
We would move to admit that under seal.

62
11:27:22AM
MR. FIEMAN:
11:27:23AM
THE COURT:
11:27:26AM
11:27:27AM
By Mr. Becker:
11:27:28AM
Q.
Special Agent Alfin, do you have 15A in front of you?
11:27:32AM
A.
I do.
11:27:32AM
Q.
What is Exhibit 15A?
11:27:34AM
A.
Exhibit 15A is a screenshot from the user account --
11:27:40AM
that is contained from the report of the Pewter user
It may be admitted under seal.
(Exhibit No. 15 was admitted.)
11:27:44AM 10
account that is contained on Exhibit 15.
This particular
11:27:48AM 11
screenshot contains information about the Pewter user
11:27:51AM 12
account, including that it was logged into Website A for
11:27:56AM 13
approximately 99 hours and 37 minutes over the course of
11:28:00AM 14
the Pewter user account's existence.
11:28:05AM 15
Q.
Can you turn to Exhibit 15B?
11:28:12AM 16
A.
I have it in front of me.
11:28:15AM 17
Q.
What is 15B?
11:28:16AM 18
A.
15B is another screenshot from the Pewter user
11:28:22AM 19
report.
11:28:25AM 20
generated by the NIT when it was deployed against the
11:28:29AM 21
Pewter user account.
This screenshot includes the information that was
11:28:33AM 22
MR. FIEMAN:
11:28:36AM 23
misstatement of the report.
11:28:38AM 24
THE COURT:
11:28:41AM 25
MR. FIEMAN:
Objection, your Honor.
That is a
It is not deployed --
Speak through the mic.

The NIT is not deployed against the

63
11:28:45AM
user account.
It is deployed against the target computer.
11:28:49AM
That is a statement in the record.
11:28:51AM
11:28:55AM
11:28:57AM
11:28:59AM
facts already in evidence.
11:29:04AM
THE COURT:
11:29:06AM
11:29:07AM
THE COURT:
I guess that is a suggestion to you.
Is that an objection?
MR. FIEMAN:
Yes, your Honor.
I am not going to judge that right
now.
MR. BECKER:
It seems like a semantic argument,
11:29:10AM 10
your Honor.
11:29:12AM 11
admissibility of the exhibit.
I don't think it would weigh on the
11:29:14AM 12
THE COURT:
11:29:20AM 13
MR. BECKER:
11:29:23AM 14
It misstates the
Go ahead.
Has 15B been admitted, your Honor?
would move to admit 15B.
11:29:26AM 15
MR. FIEMAN:
11:29:27AM 16
THE COURT:
11:29:34AM 17

It may be admitted.
11:29:34AM 18
MR. BECKER:
Permission to publish.
11:29:36AM 19
By Mr. Becker:
11:29:42AM 20
Q.
11:29:45AM 21
Exhibit 15B, can you just indicate what information is
11:29:48AM 22
contained here?
11:29:52AM 23
A.
11:29:55AM 24
by the NIT.
11:30:00AM 25
the NIT collected the information.
Special Agent Alfin, just going from left to right on
This information shows information that was generated

The first column is the date and time that
It indicates that the

64
11:30:03AM
information was collected on or about February 28th, 2015.
11:30:09AM
The second column, titled "URL," indicates the specific
11:30:15AM
page within Website A that the Pewter user account
11:30:20AM
accessed when the NIT collected the information from the
11:30:23AM
user account.
11:30:30AM
user name was Pewter.
11:30:36AM
address that was utilized by the Pewter user account on
11:30:41AM
that specific date and time.
11:30:48AM
A MAC address is a unique identifier on a network card
"Site user name" indicates that the site

"IP address" indicates the IP
"MAC" refers to MAC address.
11:30:53AM 10
that a user can utilize to connect to the internet.
This
11:30:58AM 11
unique identifier is the identifier that was in use by the
11:31:02AM 12
user of the Pewter account on the date and time that the
11:31:06AM 13
NIT collected this information.
11:31:11AM 14
Windows computer name that was in use by the user of the
11:31:16AM 15
Pewter user account on this date and time.
11:31:21AM 16
indicates the Windows user name of the computer that was
11:31:27AM 17
actively using the Pewter user account on this date and
11:31:31AM 18
time.
11:31:38AM 19
the operating system of the computer that was utilizing
11:31:42AM 20
the Pewter user account on this date and time.
11:31:48AM 21
Q.
11:31:52AM 22
function of the NIT, or something else?
11:31:53AM 23
A.
11:32:00AM 24
generated afterwards, not as a function of the NIT.
11:32:05AM 25
Utilizing the IP address that was identified by the NIT,
"Host name" refers to the
The "user name" column is blank.
"Log on name"
"OS" refers to
And then the column, "IP geo location," was that a
It was not.
The IP geo location fields were

65
11:32:08AM
publicly available databases were searched to indicate
11:32:11AM
that IP address on that given date and time was assigned
11:32:17AM
to a Comcast internet -- excuse me, Comcast cable account,
11:32:24AM
located approximately in the area of Vancouver,
11:32:27AM
Washington.
11:32:28AM
Q.
11:32:36AM
was the action that triggered the deployment of the NIT to
11:32:39AM
this user?
11:32:40AM
A.
Special Agent Alfin, what does this record indicate
In the case of the Pewter user account, this
11:32:44AM 10
information indicates that an individual logged into
11:32:47AM 11
Website A with a user name and password, and then
11:32:51AM 12
navigated to a section of the website that I previously
11:32:54AM 13
pointed out, entitled, "Preteen Videos - Girls Hardcore,"
11:33:01AM 14
again, an abbreviation for hardcore.
11:33:06AM 15
this forum, and then they opened a specific post within
11:33:10AM 16
that forum that purported to advertise images and videos
11:33:15AM 17
11:33:18AM 18
page on Website A, the NIT collected the information
11:33:23AM 19
associated with the Pewter user account.
11:33:26AM 20
Q.
11:33:29AM 21
action would the user take?
11:33:32AM 22
physically do?
11:33:32AM 23
A.
11:33:37AM 24
post, which was a post indicative of advertising child
11:33:43AM 25
pornography.
The user accessed
After accessing that particular
And in order to access that particular page, what

What would the user
The user would have clicked on the title of that
After clicking on that post, the NIT would

66
11:33:45AM
have collected the information without anything being
11:33:49AM
apparent to the user.
11:33:52AM
additional actions.
11:33:57AM
There was no pop-up message.
11:34:01AM
background.
11:34:03AM
Q.
Can you pull up Exhibit 13B?
11:34:12AM
A.
That exhibit is not in my binder.
11:34:38AM
11:34:43AM
MR. BECKER:
Nothing appeared on their screen.

The activity occurred in the
Your Honor, Exhibit 13B, because it
contains contraband images is only in your Honor's binder.
11:34:47AM 10
THE COURT:
11:34:49AM 11
MR. BECKER:
11:34:52AM 12
The user did not have to take any
I didn't hear all of that.

Exhibit 13B is only in your Honor's
binder, because it contains contraband.
11:34:56AM 13
MR. FIEMAN:
We do need to see it.
11:35:01AM 14
MR. BECKER:
Can I ask that we turn our monitors
11:35:04AM 15
just so it is not visible to the gallery?
11:35:18AM 16
move to admit 13B.
11:35:22AM 17
THE COURT:
11:35:33AM 18
What is 13B?
First, I would
Agent Alfin, what is
13B?
11:35:36AM 19
THE WITNESS:
I'm sorry, your Honor, I don't
11:35:38AM 20
recall off the top of my head.
11:35:40AM 21
your binder if you want me to.
11:35:56AM 22
MR. FIEMAN:
11:35:58AM 23
to look at it.
11:36:06AM 24
By Mr. Becker:
11:36:07AM 25
Q.
I can take a quick look at
Your Honor, I have had an opportunity
I have no objection to its admission.
Sorry, Special Agent Alfin.
Are you able to see

67
11:36:11AM
Exhibit 13B?
11:36:13AM
A.
I am now.
11:36:13AM
Q.
What is it?
11:36:14AM
A.
After the Website A was taken off line in March 2015,
11:36:21AM
an off-line version of the website was created, which is
11:36:24AM
available for review at an FBI facility.
11:36:29AM
depicts Website A as it appears when it was taken off
11:36:32AM
line.
11:36:36AM
Website A that depicts the specific post that the Pewter
That website
This is a screenshot from that recreated version of
11:36:42AM 10
user account accessed when the NIT collected the
11:36:45AM 11
information associated with the Pewter user account.
11:36:49AM 12
shows a posting in the Preteen Videos - Girls Hardcore
11:36:55AM 13
section of Website A.
11:36:58AM 14
Q.
Sorry.
11:37:00AM 15
A.
The posting title is, "Girl 12ish eats other girls
11:37:06AM 16
slash dirty talk."
11:37:36AM 17
Q.
11:37:41AM 18
by the NIT?
11:37:44AM 19
collected?
11:37:44AM 20
A.
11:37:49AM 21
the FBI in the Eastern District of Virginia.
11:37:54AM 22
that data was then made available to me in my offices, as
11:37:57AM 23
well as my squad mates, in Linthicum, Maryland.
11:38:02AM 24
Q.
11:38:06AM 25
have testified to, Exhibit 15?
It
And it contains --
What is the posting title?
Special Agent Alfin, to where was the data collected

Where was that returned to when it was
That data was returned to a computer controlled by

A copy of
Was that data then used to create the report that you

68
11:38:08AM
A.
It was.
11:38:09AM
Q.
And where was the website server of the website
11:38:25AM
located at the time that all of this activity was
11:38:27AM
occurring?
11:38:28AM
A.
11:38:31AM
computer server in the Eastern District of Virginia.
11:38:47AM
11:38:49AM
Honor.
11:39:26AM
By Mr. Becker:
It was located on a government-controlled server --
MR. BECKER:
The court's brief indulgence, your
11:39:29AM 10
Q.
11:39:32AM 11
returned -- the NIT information was returned to a
11:39:34AM 12
government computer, how, if at all, were agents able to
11:39:37AM 13
access it?
11:39:39AM 14
A.
11:39:43AM 15
Website A, the information returned by the NIT was first
11:39:49AM 16
sent directly to a government computer in the Eastern
11:39:52AM 17
District of Virginia.
11:39:56AM 18
replicated to another server located at the major case
11:40:00AM 19
coordination unit in Linthicum, Maryland.
11:40:04AM 20
information was there, available for review by the agents
11:40:06AM 21
who were monitoring the website 24 hours a day, seven days
11:40:10AM 22
a week, until the website was taken off line.
11:40:23AM 23
Q.
11:40:28AM 24
you stated it occurred when the user clicked on that
11:40:31AM 25
particular message thread that you described.
Special Agent Alfin, once the information was
During the course of operating and monitoring
That information was then
That
In terms of the deployment of the NIT, was that --
Was that an

69
11:40:35AM
active or passive process?
11:40:37AM
A.
11:40:41AM
such that when one user accessed the post, as the Pewter
11:40:47AM
account did, that the NIT would then be triggered and then
11:40:51AM
deployed.
11:40:55AM
need to take additional actions to deploy the NIT against
11:41:02AM
individual users.
11:41:03AM
Q.
11:41:07AM
that was navigated to by Pewter?
It was a passive process.
The NIT was configured
The FBI agents monitoring the website did not
And why was that the case for the particular forum
11:41:11AM 10
A.
11:41:18AM 11
in the Preteen Videos - Girls Hardcore forum because users
11:41:23AM 12
accessing posts in that forum were attempting to access or
11:41:29AM 13
distribute or advertise child pornography.
11:41:35AM 14
where a user in that forum accessed a post, we can
11:41:40AM 15
affirmatively state that a user has attempted to access
11:41:44AM 16
child pornography.
11:41:50AM 17
Q.
11:41:52AM 18
NIT, was that ultimately --
11:41:54AM 19
11:41:59AM 20
11:42:02AM 21
The NIT was deployed against users who accessed posts
At the point
In terms of the information that was collected by the
THE COURT:
The NIT did not just go to anyone that
logged into the website?

THE WITNESS:
No, your Honor.
The warrant did
11:42:04AM 22
authorize us to deploy the NIT in that fashion.
11:42:09AM 23
the FBI, as noted in the warrant, that we may further
11:42:15AM 24
restrict how we deploy the NIT, deployed it in such a
11:42:19AM 25
fashion that the NIT was deployed against users who

And then
70
11:42:22AM
attempted to access illicit content.
11:42:28AM
11:42:36AM
11:42:38AM
11:42:40AM
11:42:43AM
THE COURT:
11:42:45AM
MR. BECKER:
11:42:47AM
warrant affidavit.
11:42:52AM
By Mr. Becker:
THE COURT:
So it was only attached to a
particular forum?
THE WITNESS:
It was only deployed within certain
forums on the website, yes, your Honor.

Okay.
Your Honor, I can point to the
I will have an opportunity for that.
11:42:53AM 10
Q.
11:42:55AM 11
provided to FBI in the Vancouver, Washington area?
11:43:00AM 12
A.
It was.
11:43:00AM 13
Q.
And just in summary, what actions were taken by FBI
11:43:13AM 14
in this area based on that information?
11:43:15AM 15
A.
11:43:19AM 16
information that was collected by the NIT, served a
11:43:25AM 17
subpoena to Comcast cable, which identified a residence in
11:43:32AM 18
Vancouver, Washington.
11:43:37AM 19
user report for the Pewter account, and other information
11:43:40AM 20
about the investigation, was provided to the Seattle FBI
11:43:44AM 21
office, which covers the Vancouver, Washington area.
11:43:48AM 22
Using that information, a search warrant was executed at
11:43:52AM 23
the defendant's residence.
11:43:54AM 24
Q.
11:43:59AM 25
collected by the NIT recovered from the home of the
Was the information collected by the NIT ultimately
The major case coordination unit, after receiving the
That information, along with a
Was information pertaining to the -- information

71
11:44:02AM
defendant, Mr. Michaud?
11:44:03AM
A.
11:44:08AM
identified by the NIT was found to be associated with a
11:44:13AM
particular network adapter that was recovered from the
11:44:16AM
defendant's residence.
11:44:19AM
Q.
11:44:23AM
also recovered during that search?
11:44:24AM
A.
11:44:29AM
quantity of child pornography, images, and videos were
Yes.
Specifically the unique MAC address that was
To your knowledge, was child pornography evidence
Yes.
I have read reports indicating that a large
11:44:35AM 10
recovered from digital devices in the defendant's
11:44:37AM 11
residence.
11:44:43AM 12
MR. BECKER:
Your Honor, for the record, I think I
11:44:45AM 13
neglected to ask that 13B be filed under seal because of
11:44:49AM 14
contraband.
11:44:51AM 15
11:44:55AM 16
11:44:58AM 17
THE COURT:
Yeah, it should be under seal.
If I
didn't say so, it may be admitted.

11:45:03AM 18
11:45:04AM 19
I would make that request at this time.
MR. BECKER:
Does your Honor have further
questions for the government at this point?
11:45:09AM 20
THE COURT:
Yeah, I do have one question, Agent
11:45:14AM 21
Alfin, and then the defense may have some questions for
11:45:16AM 22
you.
11:45:18AM 23
11:45:30AM 24
11:45:37AM 25
Is there any way for the FBI to go back down this NIT
to get into the subject computer, the user's computer?
THE WITNESS:
No, your Honor.
After the NIT

72
11:45:39AM
collected the limited amount of information that it was
11:45:43AM
permitted to collect, there was nothing that resided on
11:45:46AM
the subject's computer that would allow the government to
11:45:49AM
go back and further access that computer.
11:45:56AM
THE COURT:
11:46:03AM
MR. BECKER:
11:46:13AM
I yield to the defense, your Honor, I did want to point
11:46:16AM
your Honor to the NIT search warrant.
11:46:22AM
Exhibit 1 to Docket 47.
11:46:26AM 10
That answers my question, I guess.

Your Honor, I just want to -- before
This is, again,
It is Exhibit 1 in our exhibit
book.
11:46:27AM 11
THE COURT:
11:46:33AM 12
MR. BECKER:
11:46:35AM 13
THE COURT:
11:46:37AM 14
MR. BECKER:
What exhibit?
Exhibit 1 in the exhibit book.
What page?
Page 24, Footnote 8.
I would point
11:46:59AM 15
the court to Footnote 8.
11:47:03AM 16
the application and affidavit, as it did, requests
11:47:06AM 17
authority to deploy to any user who logged in with a user
11:47:09AM 18
name and a password --
11:47:11AM 19
THE COURT:
11:47:12AM 20
MR. BECKER:
Footnote 8 indicates, although
You are dropping your voice.

Sorry, your Honor.
Just to make the
11:47:14AM 21
point that this footnote indicated that, although the
11:47:16AM 22
application was to deploy to any user who logged in with a
11:47:22AM 23
user name and a password, the affidavit does articulate
11:47:25AM 24
that the FBI may deploy in a more limited sort of fashion,
11:47:30AM 25
including in particular areas of the target website, such

73
11:47:34AM
as the target website sub-forums described in
11:47:39AM
Paragraph 27.
11:47:49AM
and that is on Page 20 and Page 21, that includes the
11:48:05AM
sub-forum that we saw earlier, that is, Preteen Videos -
11:48:09AM
Girls Hardcore, the forum in which the defendant was
11:48:10AM
operating at the time that the NIT was deployed.
11:48:18AM
There is no question the warrant requested and was
11:48:22AM
granted authority to deploy to anyone who logged in with a
11:48:23AM
user name and password.
And if your Honor looks at Paragraph 27,
11:48:26AM 10
deployment occurred.
11:48:38AM 11
Honor.
11:48:39AM 12
THE COURT:
11:48:44AM 13
In this instance that is how the
Nothing further at this point, your
Mr. Fieman.
CROSS-EXAMINATION
11:48:46AM 14
By Mr. Fieman:
11:48:56AM 15
Q.
Good morning, Agent Alfin.
11:48:57AM 16
A.
Good morning.
11:48:58AM 17
Q.
I am Colin Fieman.
11:49:02AM 18
attorneys.
11:49:04AM 19
A.
Not formally.
11:49:06AM 20
Q.
If there is anything I ask that isn't clear, and we
11:49:10AM 21
are in some confusing territory, please just ask me to
11:49:14AM 22
restate the question, okay?
11:49:16AM 23
A.
Understood.
11:49:16AM 24
Q.
Now, we have been going actually a couple of hours
11:49:19AM 25
now trying to sort out exactly what this NIT does, for
I am one of Mr. Michaud's defense
We haven't met before, have we?

74
11:49:23AM
Judge Bryan.
Do you know if Judge Buchanan had any
11:49:29AM
information or questions beyond what is in the warrant
11:49:31AM
about how this thing worked when the warrant was approved?
11:49:34AM
A.
11:49:39AM
for any additional information beyond what was stated in
11:49:41AM
the warrant affidavit.
11:49:42AM
Q.
11:49:45AM
to figure this out.
11:49:48AM
step-through-step with kind of concrete imagery how a NIT
I am not aware whether or not Judge Buchanan asked
Now, please bear with me, because we are all trying

I want to kind of go
11:49:52AM 10
works.
If you can guide me through that process, it will
11:49:56AM 11
be easier.
11:49:57AM 12
A.
I will answer your questions.
11:49:58AM 13
Q.
Now, the problem that the FBI faced when it was
11:50:06AM 14
investigating users of Site A was that you couldn't tell
11:50:14AM 15
who was signing into this site, because their identifying
11:50:19AM 16
information was masked, right?
11:50:20AM 17
A.
That's correct.
11:50:21AM 18
Q.
And that's because that is what the Tor browser or
11:50:23AM 19
the Tor network does, it strips out that IP address,
11:50:28AM 20
something like a phone number or an address, that would
11:50:31AM 21
normally be transmitted with the user accessing the site?
11:50:36AM 22
A.
11:50:39AM 23
information is stripped out.
11:50:43AM 24
network does obfuscate and make that information
11:50:47AM 25
difficult, if not impossible, to identify.
Okay?
I would not agree with the statement that that

I would agree that the Tor

75
11:50:49AM
Q.
11:50:54AM
"you," the FBI, was, how do we get the IP information when
11:50:59AM
it isn't sent to the website?
11:51:04AM
A.
11:51:09AM
IP information is not IP information that can be used to
11:51:12AM
identify the end-user.
11:51:14AM
Q.
11:51:20AM
the Tor network, but you really can't see their telephone
11:51:23AM
numbers; is that fair?
So the problem you were trying to solve -- I say
Some IP information is sent to the website, but that
So basically people are calling into the website on
11:51:25AM 10
A.
I believe that's a fair analogy.
11:51:27AM 11
Q.
So it is like a private caller.
11:51:30AM 12
is calling the website, but you can't tell because the
11:51:32AM 13
number is not coming up?
11:51:38AM 14
A.
I would agree with that characterization.
11:51:42AM 15
Q.
So the point of the NIT then was that when -- at
11:51:47AM 16
least as far as the warrant authorized, somebody signed
11:51:49AM 17
into the website, somebody in Virginia could activate the
11:51:52AM 18
NIT, correct?
11:51:56AM 19
A.
11:52:01AM 20
in Virginia.
11:52:02AM 21
Q.
Okay.
11:52:06AM 22
A.
When certain conditions that were described in the
11:52:09AM 23
affidavit were met, yes.
11:52:11AM 24
Q.
Such as signing into the website?
11:52:13AM 25
A.
Yes.
You want to know who
I understand that is loose.
The NIT was not activated manually by an individual
So it was set up to activate automatically?

76
11:52:13AM
Q.
11:52:18AM
set up the NIT to be activated when somebody signed in,
11:52:23AM
correct?
11:52:24AM
A.
That's correct.
11:52:25AM
Q.
And at the point that the person is signing in, and
11:52:30AM
the NIT is being activated, you don't have that telephone
11:52:33AM
number or complete IP address, correct?
11:52:36AM
want to get?
11:52:37AM
A.
So at some point some FBI agent or tech specialist
That's what you
Prior to a user logging into the website, and prior
11:52:40AM 10
to the NIT being activated, we do not have any identifying
11:52:44AM 11
information, including an IP address, for that user.
11:52:48AM 12
Q.
11:52:53AM 13
then sent, without the user's knowledge, from the site in
11:52:57AM 14
Virginia to the user's computer, wherever that may be,
11:53:02AM 15
correct?
11:53:02AM 16
A.
The user after certain conditions are met --
11:53:05AM 17
Q.
Such as signing in?
11:53:06AM 18
A.
Correct.
19
Q.
Yes.
11:53:10AM 20
A.
And in the case of this defendant, accessing a
11:53:13AM 21
particular post on the website.
11:53:18AM 22
the website, that user has triggered actions that causes
11:53:21AM 23
his computer to download certain information from the
11:53:23AM 24
website.
11:53:26AM 25
information being downloaded by the user with the NIT
Correct.
And the way the NIT works is that it is
As articulated in the warrant.
By accessing that post on
We configured the NIT to supplement the

77
11:53:30AM
instructions.
11:53:31AM
Q.
11:53:35AM
already we are using words like "supplement" that are a
11:53:37AM
little confusing.
11:53:41AM
in, the FBI has set it up so the NIT will be deployed at
11:53:47AM
sign in, or at some other point, correct?
11:53:50AM
A.
After certain conditions are met, yes.
11:53:53AM
Q.
Then that NIT is really like a package of code or
11:53:56AM
data, right?
Okay.
And, again, I need to go really slowly because
Just step-by-step.
The user has signed
11:53:57AM 10
A.
Yes.
11:53:58AM 11
Q.
And when the user is signing in, they don't know that
11:54:03AM 12
they are getting that package of code or data sent to
11:54:06AM 13
them, right?
11:54:09AM 14
and secret?
11:54:10AM 15
A.
11:54:13AM 16
computer, it is intended to be invisible to the user.
11:54:16AM 17
Q.
11:54:19AM 18
all of a sudden this thing in the background --
11:54:22AM 19
information is being sent from Virginia, to, in this case,
11:54:24AM 20
a Washington computer, by the FBI?
11:54:26AM 21
A.
11:54:30AM 22
District of Virginia by the user who has accessed the
11:54:33AM 23
website.
11:54:33AM 24
Q.
11:54:39AM 25
Washington?
The whole point is it is in the background,
When the user downloads the NIT instructions to their
It is invisible.
Okay.
They are signing in and then
It is being downloaded from the server in the Eastern
How does the NIT code get from Virginia to

It travels, right?

78
11:54:41AM
A.
11:54:45AM
logging into the website when they are using the password
11:54:47AM
and after certain conditions are met.
11:54:49AM
Q.
11:54:52AM
Washington computer in this case, correct?
11:54:53AM
A.
It does.
11:54:54AM
Q.
And the user does not know that is happening.
11:54:58AM
whole point is that is secret, correct?
11:55:00AM
A.
Correct.
11:55:00AM 10
Q.
So then when the NIT lands on the Washington
11:55:05AM 11
computer, it does certain things that the user is not
11:55:08AM 12
aware of, correct?
11:55:09AM 13
A.
That's correct.
11:55:11AM 14
Q.
What it does is it searches the user's computer, in
11:55:16AM 15
this case the Washington computer, to find that
11:55:20AM 16
identifying information, like the IP address, correct?
11:55:22AM 17
A.
11:55:25AM 18
information identified in the NIT warrant attachment to
11:55:30AM 19
the government-controlled computer, in addition to the
11:55:33AM 20
information that the user's computer was already sending
11:55:36AM 21
to the government-controlled computer.
11:55:38AM 22
Q.
11:55:40AM 23
information, is not being sent without that NIT, right?
11:55:43AM 24
A.
11:55:48AM 25
internet.
Yes.
It is downloaded to the user's computer after
So the NIT code travels from Virginia to the
The
It instructs the user's computer to send the
But we know the IP address, the identifying
The user's IP address is being transmitted across the

But given the function of the Tor network, the

79
11:55:53AM
user's IP address during the normal course of operation of
11:55:57AM
a website that operates on the Tor network does not make
11:56:00AM
it to the government computer.
11:56:01AM
Q.
11:56:05AM
like you have a police station -- FBI headquarters -- or,
11:56:08AM
excuse me, the FBI server in Virginia where the NIT is
11:56:13AM
stored and ready to go, right?
11:56:15AM
A.
11:56:18AM
yes.
Just to try and picture this.
It is a little bit
Our server that hosted Website A was in Virginia,
11:56:18AM 10
Q.
11:56:24AM 11
can't see the number, so you send the NIT, like a police
11:56:28AM 12
officer or agent, out of Virginia, to the computer, to
11:56:31AM 13
find the IP address, correct?
11:56:32AM 14
A.
11:56:37AM 15
analogy, because anyone can call any phone number at any
11:56:40AM 16
given time.
11:56:44AM 17
more than just call the website.
11:56:47AM 18
front page of the website, and at that point the NIT would
11:56:50AM 19
not be deployed.
11:56:53AM 20
with a user name and password.
11:56:56AM 21
that we are distinguishing the differences in the
11:56:59AM 22
analogies.
11:56:59AM 23
Q.
11:57:02AM 24
type in their user name and password on the homepage to
11:57:05AM 25
get that process?
And then somebody calls into that server, but he
I don't necessarily agree with the phone call
For the deployment of our NIT, you had to do

Anyone could access the
They had to then log into the website

So I want to make sure
I think that is a fair distinction.
They have to

80
11:57:06AM
A.
Correct.
11:57:07AM
Q.
Fair enough.
11:57:11AM
case the NIT, the undercover code, reaches Mr. Michaud's
11:57:16AM
home and his computer, it lands on his computer, and then
11:57:19AM
finds the IP address, and says send it back to Virginia,
11:57:22AM
correct?
11:57:22AM
A.
11:57:27AM
code as being a police officer or undercover code.
11:57:32AM
can clarify anything that I have already stated about how
So once that police officer, or in this
I don't agree with the characterization of the NIT

But I
11:57:35AM 10
the NIT is delivered.
11:57:36AM 11
Q.
11:57:39AM 12
Washington.
11:57:44AM 13
Washington --
11:57:47AM 14
A.
It is sent to Virginia.
11:57:48AM 15
Q.
Sent to Virginia.
11:57:50AM 16
A.
Where the NIT warrant was authorized.
11:57:52AM 17
Q.
That is a little bit like an evidence room, right?
11:57:56AM 18
That data is securely stored and then agents can go in
11:57:59AM 19
later and retrieve it, look at it, and create all of these
11:58:03AM 20
spreadsheets that we have seen, correct?
11:58:04AM 21
A.
11:58:07AM 22
computer in the Eastern District of Virginia, and that
11:58:09AM 23
information was preserved as evidence.
11:58:11AM 24
Q.
11:58:18AM 25
are talking about searches -- the search and the seizure,
So we know it is delivered to the computer in

And then when the IP address is sent back to
It is stored there, right?
The information was sent to a government-controlled
Now, Agent Alfin, just so we understand, you know, we

81
11:58:22AM
exactly where the information -- the evidence is taken
11:58:24AM
from, correct?
11:58:27AM
struggling with here, right?
11:58:29AM
A.
11:58:32AM
answered today.
11:58:34AM
Q.
11:58:38AM
statements in the government's pleading when it
11:58:40AM
characterizes the IP information as information seized
11:58:46AM
from Michaud's computer?
11:58:49AM 10
11:58:53AM 11
I believe that is one of the questions that is being
Yes.
Would you agree or disagree with various
MR. BECKER:
Objection.
It is irrelevant.
It is
asking for a legal conclusion, your Honor.
11:58:58AM 12
11:58:59AM 13
That is an issue that we are kind of
MR. FIEMAN:
I am just asking if he agrees or
disagrees with that characterization.
11:58:59AM 14
THE COURT:
Rephrase the question.
11:59:01AM 15
By Mr. Fieman:
11:59:02AM 16
Q.
11:59:04AM 17
IP address, and all that they were talking about,
11:59:07AM 18
constitutes information seized from Michaud's computer?
11:59:12AM 19
11:59:13AM 20
Do you agree or disagree with the statement that the
MR. BECKER:
Again, calling for a
legal conclusion.
11:59:14AM 21
THE COURT:
11:59:16AM 22
THE WITNESS:
23
Objection.
I think you may answer.

Could you restate the question?
By Mr. Fieman:
11:59:19AM 24
Q.
11:59:25AM 25
Department of Justice itself has made characterizing the
Do you agree or disagree with the statement that the

82
11:59:28AM
IP address and all this evidence as information seized
11:59:32AM
from Michaud's computer?
11:59:45AM
A.
11:59:51AM
computer.
11:59:58AM
that an IP address is not necessarily assigned directly to
12:00:03PM
a computer, but it utilizes that IP address.
12:00:07PM
to make sure that my answer is not misconstruing how the
12:00:11PM
internet and IP addresses work.
12:00:13PM
Q.
The information was reported by Mr. Michaud's

My hesitation in giving a flat yes to that is
Let me put it this way:
If somebody --
I just want
Let's use
12:00:20PM 10
the telephone analogy.
I know it is not perfect.
If
12:00:23PM 11
somebody makes a phone call, and you have caller ID, you
12:00:25PM 12
can see their telephone number come up on your cellphone,
12:00:29PM 13
correct?
12:00:29PM 14
A.
Correct.
12:00:29PM 15
Q.
If you can't see the telephone number, because they
12:00:31PM 16
have a private caller or a number-blocking device, then
12:00:34PM 17
you can't see the telephone number just looking at your
12:00:36PM 18
phone, right?
12:00:37PM 19
A.
Generally, yes.
12:00:38PM 20
Q.
So what you might do, one alternative is, you might
12:00:40PM 21
say, well, we believe this person is engaged in criminal
12:00:42PM 22
activity, so we are going to go to his house, and we are
12:00:45PM 23
going to open the door and go inside and look at the
12:00:49PM 24
telephone number that he has written down in his address
12:00:51PM 25
book?
That would be one way to get the telephone number,

83
12:00:54PM
correct?
12:00:54PM
A.
12:00:58PM
from not knowing a person's phone number to being inside
12:01:01PM
their house.
12:01:03PM
Q.
12:01:04PM
12:01:07PM
take one hour.
12:01:17PM
of a new magistrate judge here.
12:01:23PM
stop at 3:30, 3:45 at the latest, this afternoon.
I am not tracking in your example on how we have gone
Withdrawn.
THE COURT:
It is lunchtime, counsel.
Let's just
We have a ceremony at 4:00, the induction

We are going to have to
Keep
12:01:30PM 10
your eye on the clock.
You guys probably want to stay
12:01:34PM 11
here over the weekend, from what I understand about the
12:01:38PM 12
weather back east.
12:01:39PM 13
MR. BECKER:
There is not going to be an option.
12:01:43PM 14
MR. FIEMAN:
Dr. Soghoian is here.
15
As I
indicated, he was supposed to be in Europe, and
12:01:49PM 16
rescheduled.
12:01:51PM 17
What we would ask is, if maybe we could avail other
12:01:57PM 18
witnesses, I could finish with Agent Alfin, that will take
12:01:59PM 19
about 15 minutes --
12:02:00PM 20
He is supposed to be in Europe on Monday.
THE COURT:
Talk to counsel about that.
It
12:02:02PM 21
doesn't matter to me whether you take witnesses out of
12:02:05PM 22
order.
12:02:11PM 23
I understand this better now.
12:02:12PM 24
01:06:50PM 25
I am not sure that we have a lot more witnesses.
MR. FIEMAN:
(Lunch break.)

84
01:06:50PM
THE COURT:
Agent Alfin, do you want to resume the
01:06:56PM
01:06:56PM
01:06:59PM
By Mr. Fieman:
01:07:05PM
Q.
01:07:09PM
about the NIT, and then I am going to wrap up with a few
01:07:11PM
questions about one other matter.
01:07:16PM
A.
Okay.
01:07:17PM
Q.
I just wanted to clarify, after the IP address and
witness stand?
THE WITNESS:
Yes, your Honor.
Agent Alfin, I just have one more quick question
Okay?
01:07:20PM 10
other identifying information was sent to the FBI, you
01:07:24PM 11
then used that information to go to Comcast and get an
01:07:28PM 12
address and all that stuff that would help you locate
01:07:32PM 13
physical addresses from the IP address, correct?
01:07:35PM 14
A.
01:07:39PM 15
the fact that the subscriber is likely in the Vancouver,
01:07:45PM 16
Washington area, and you can use publicly available
01:07:48PM 17
databases to check that information, but we do serve a
01:07:51PM 18
subpoena to Comcast to identify the actual subscriber.
01:07:53PM 19
Q.
01:07:56PM 20
you saw Pewter signing into the website?
01:08:01PM 21
A.
01:08:05PM 22
that operates on the Tor network, the user's true IP
01:08:08PM 23
address is not visible to the website.
01:08:10PM 24
Q.
01:08:13PM 25
from the computer that you were able to go to Comcast,
That is correct.
The IP address itself alerts us to
So why didn't you just go to Comcast originally when
During the normal course of operation, the website
It is only after the IP address was sent to Virginia

85
01:08:16PM
correct?
01:08:16PM
A.
That's correct.
01:08:17PM
Q.
Now, previously --
01:08:24PM
bit, briefly, about the website itself.
01:08:27PM
previously at Government Exhibit 12A.
01:08:30PM
front of you?
01:08:30PM
A.
I am pulling it up now.
01:08:42PM
Q.
You have seen that photograph before.
01:08:46PM
familiar with the record in this case, correct?
Now, we are moving on to a little

You looked
Do you have that in

You are
01:08:47PM 10
A.
I am.
01:08:48PM 11
Q.
And that 12A is a shot of the website's homepage, the
01:08:55PM 12
log-in page; is that correct?
01:08:56PM 13
A.
Yes.
01:08:57PM 14
Q.
And do you notice down somewhere in the lower right
01:09:05PM 15
corner there is a date?
01:09:06PM 16
A.
Yes.
01:09:06PM 17
Q.
And what is the date?
01:09:07PM 18
A.
February 3rd, 2015.
01:09:09PM 19
Q.
So that Government 12A depicts the homepage as it
01:09:17PM 20
appeared approximately 17 days before the search warrant
01:09:21PM 21
application, correct?
01:09:22PM 22
A.
That's correct.
01:09:22PM 23
Q.
Because the search warrant was obtained on
01:09:27PM 24
February 20th, 2015?
01:09:28PM 25
A.
The NIT search warrant?

86
01:09:29PM
Q.
The NIT search warrant, yes.
01:09:31PM
A.
Correct.
01:09:32PM
Q.
Can you now turn to --
01:09:41PM
has been marked as Defense Exhibits A15 and A16.
01:09:46PM
01:09:54PM
01:09:59PM
01:10:01PM
copies of what is already in Government Exhibit 14, just
01:10:04PM
so the record is clear.
I am going to show you what
If I may approach, your Honor?
We just supplied
these exhibits to you.

Agent Alfin, I believe those are just additional
Is that right?
01:10:06PM 10
A.
01:10:17PM 11
appear to be the same images.
01:10:19PM 12
Q.
01:10:22PM 13
pictures depict a laptop that I believe was seized in
01:10:29PM 14
Naples, Florida, on February 19th, 2015; is that correct?
01:10:32PM 15
A.
01:10:37PM 16
laptop was actually seized on February 20th.
01:10:40PM 17
Q.
01:10:44PM 18
warrant application, correct?
01:10:47PM 19
recollection on the date that the Naples, Florida search
01:10:52PM 20
was executed?
01:10:54PM 21
A.
01:10:56PM 22
occur on the 19th.
01:11:00PM 23
the residence on February 20th.
01:11:03PM 24
the actual laptop would have been seized.
01:11:05PM 25
Q.
Let me verify what is in Government 14.
Now, it is correct that --
Yes, these
Actually, these two
I believe the search warrant record reflects that the
We will look for the search --
That is in the search
Would that refresh your
Could you take a look at that?
The beginning of the execution of the warrant did
Okay.
I just want to clarify that we exited

That would be the time
And when we are talking about the Naples,

87
01:11:08PM
Florida residence, we are talking about the residence of
01:11:11PM
the original operator or administrator of this site, or
01:11:15PM
one of the operators; is that correct?
01:11:17PM
A.
That's correct.
01:11:18PM
Q.
And what was his name, do you recall?
01:11:22PM
01:11:28PM
By Mr. Fieman:
01:11:30PM
Q.
01:11:33PM
in Naples, Florida, correct?
MR. BECKER:
Objection to relevance.
You are familiar with the photographs that were taken
01:11:34PM 10
A.
01:11:36PM 11
warrant.
01:11:37PM 12
Q.
01:11:39PM 13
to Government 14.
01:11:47PM 14
banner in a little bit of detail for Playpen; is that
01:11:52PM 15
correct?
01:11:55PM 16
welcomes you"?
01:11:56PM 17
A.
Yes, I was present for the execution of that search
So you were present.
It does.
MR. FIEMAN:
01:11:58PM 19
THE COURT:
about.
MR. FIEMAN:
01:12:10PM 22
THE COURT:
01:12:17PM 24
01:12:19PM 25
Your Honor, do you have that exhibit?

I don't know what you are talking
Are you talking about A14?
01:12:03PM 21
01:12:14PM 23
It is the second picture that shows a
It says in the upper left-hand corner, "Playpen
01:11:57PM 18
01:12:00PM 20
Now, I would like you to turn
Government 14, your Honor.

That is the, "Use of cell-site
simulator technology"?
MR. FIEMAN:
Government 14 should be two pictures
of a laptop, your Honor.

88
01:12:20PM
THE COURT:
That is 15 and 16.
01:12:27PM
THE CLERK:
He is in the government's.
01:12:27PM
MR. FIEMAN:
01:12:29PM
are the same.
01:12:31PM
By Mr. Fieman:
01:12:31PM
Q.
01:12:37PM
A16.
01:12:44PM
February 19th or on the morning of February 20th; is that
01:12:48PM
correct?
That's fine.
The defense exhibits
Let me refer then to A15 and 16 -- Defense A15 and

Those show the website as it appeared on
01:12:48PM 10
A.
That's correct.
01:12:49PM 11
Q.
And those pictures were taken as you were -- the FBI
01:12:53PM 12
was in fact in the process of seizing the control of the
01:12:57PM 13
website, correct?
01:12:59PM 14
A.
01:13:02PM 15
timeframe, yes.
01:13:02PM 16
Q.
01:13:06PM 17
warrant application was completed and presented to the
01:13:09PM 18
judge in Virginia, correct?
01:13:11PM 19
A.
That is correct.
01:13:11PM 20
Q.
So now you can see in the upper left-hand corner that
01:13:15PM 21
there is a logo that appears there?
01:13:17PM 22
A.
Yes, there is.
01:13:18PM 23
Q.
And do you see any lascivious display of prepubescent
01:13:24PM 24
girls in that left corner?
01:13:26PM 25
A.
It happened in a similar -- closely-related
And then shortly afterwards, on the 20th, the NIT
The logo depicted in this image depicts what appears

89
01:13:30PM
to be a prepubescent female posed in a sexually suggestive
01:13:35PM
manner.
01:13:36PM
Q.
01:13:41PM
anywhere there?
01:13:41PM
A.
I do not.
01:13:42PM
Q.
Do you see their legs spread apart?
01:13:45PM
A.
I do not.
01:13:46PM
Q.
It is fair to say that the February 3rd logo that we
01:13:50PM
saw earlier did not exactly match what you seized on the
Do you see any nudity or --
Do you see two females
01:13:53PM 10
19th, correct?
01:13:54PM 11
A.
The logo did change.
01:13:56PM 12
Q.
At any point is the warrant application amended or
01:14:02PM 13
corrected to change the description of the images that
01:14:08PM 14
appeared with the logo?
01:14:09PM 15
A.
01:14:14PM 16
of review, and it was not updated to include my
01:14:17PM 17
observations from the night of February 19th and morning
01:14:20PM 18
of February 20th.
The warrant for the NIT reflected a specific period
01:14:23PM 19
01:14:24PM 20
MR. FIEMAN:
Thank you.
That is all the questions
MR. BECKER:
Your Honor, may I redirect Special
I have.
01:14:36PM 21
01:15:02PM 22
Agent Alfin pertaining to this issue, which was --
01:15:04PM 23
you.
01:15:04PM 24
01:15:05PM 25
By Mr. Becker:

Thank
90
01:15:06PM
Q.
01:15:09PM
where the administrator changed, as you testified about,
01:15:11PM
the logo of the website?
01:15:13PM
A.
Yes.
01:15:13PM
Q.
And when did that occur, based on examination of the
01:15:17PM
website?
01:15:17PM
A.
01:15:21PM
of February 19th, several hours before his arrest.
01:15:25PM
Q.
Special Agent Alfin, did there come a point in time
It occurred approximately in the early evening hours
Was there a posting on the website that reflected
01:15:28PM 10
that?
01:15:28PM 11
A.
01:15:32PM 12
the website, indicating that the administrator had changed
01:15:35PM 13
the logo.
01:15:36PM 14
Q.
Can I refer you and ask you to review Exhibit 12D?
01:15:56PM 15
A.
01:15:58PM 16
Q.
What is Exhibit 12D?
01:16:11PM 17
review Exhibit 13A.
01:16:17PM 18
A.
01:16:20PM 19
Q.
What is Exhibit 13A?
01:16:22PM 20
A.
Exhibit 13A is a posting from the administration
01:16:28PM 21
section of Website A.
01:16:33PM 22
Contest."
01:16:37PM 23
administrators and moderators of Website A about changing
01:16:40PM 24
the logo of Website A.
01:16:46PM 25
There was a posting in the administration section of
Excuse me.
I'm sorry.
Please
My apologies.
The post is entitled, "Logo
And it has a discussion between various
MR. BECKER:
Move Exhibit 13A into evidence, your

91
01:16:50PM
Honor.
01:16:50PM
MR. FIEMAN:
01:16:50PM
THE COURT:
01:16:52PM
01:16:52PM
By Mr. Becker:
01:16:52PM
Q.
01:16:56PM
Exhibit 13A?
01:16:59PM
A.
01:17:01PM
Q.
And is there a posting that indicates when the
No objection.
It may be admitted.
(Exhibit No. 13A was admitted.)
If I can direct your attention to the last page of
01:17:05PM 10
administrator put the new logo onto the website?
01:17:08PM 11
A.
01:17:11PM 12
by the primary administrative account that states, "I just
01:17:15PM 13
put it up."
01:17:19PM 14
dated February 20th, 2015.
01:17:25PM 15
sometime on February 19th, 2015.
01:17:30PM 16
because the time zone of the website was several hours
01:17:33PM 17
ahead of eastern time.
01:17:35PM 18
Q.
01:17:47PM 19
the initial logo just a few moments ago; is that right?
01:17:49PM 20
A.
Yes.
01:17:50PM 21
Q.
When was the first time that you reviewed, to your
01:17:56PM 22
recollection, the website in question?
01:17:57PM 23
A.
01:18:01PM 24
question would have been approximately August 2014, after
01:18:06PM 25
it came online.
There is.
There is a posting in this thread created
That posting, according to the website, is
In terms of the --
In actuality, that occurred

The time discrepancy is
You reviewed the two images on
The first time that I reviewed the website in

92
01:18:07PM
Q.
01:18:10PM
of the site?
01:18:11PM
A.
01:18:16PM
first viewing of it up until the execution of the search
01:18:20PM
warrant at the administrator's residence, it featured the
01:18:26PM
original logo, the one that was described in the warrant
01:18:29PM
affidavit, that featured what appeared to be two
01:18:34PM
prepubescent females.
01:18:36PM
Q.
And at that time what images were present on the logo
Every time that I reviewed the website, between my
At the time you were in the home of the
01:18:38PM 10
administrator, do you recall taking particular notice of
01:18:41PM 11
any change to the website's logo?
01:18:44PM 12
A.
01:18:47PM 13
website and would have seen the new logo, it did not jump
01:18:50PM 14
out to me as a significant change to the website or a
01:18:52PM 15
material change to the website, given the content of the
01:18:55PM 16
logo and its similarity to the previous logo.
01:18:58PM 17
Q.
01:19:03PM 18
omitted from the NIT warrant in any way?
01:19:05PM 19
A.
Absolutely not.
01:19:06PM 20
Q.
Special Agent Alfin, just a few brief questions about
01:19:31PM 21
how a user communicates with a website, to go briefly back
01:19:35PM 22
to that topic.
01:19:39PM 23
such as the one in this case, what sort of information
01:19:42PM 24
does that user send to the website?
01:19:47PM 25
A.
No.
At the time, while I would have clearly seen the
Was it your intent that the change to the logo be
When a user communicates with a website,
During the normal course of operation of a website,

93
01:19:50PM
such as Website A, when a user accesses the website, and
01:19:55PM
then logs into the website, they are sending various
01:19:59PM
pieces of information to that website.
01:20:02PM
includes information about processes running on the user's
01:20:06PM
computer.
01:20:10PM
the website.
01:20:13PM
website responds by sending information back to the user's
01:20:18PM
computer, and that user can view that information inside
01:20:21PM
of a web browser.
That information
It also includes requests for information from

During the normal course of operation, that
That information is typically displayed
01:20:25PM 10
as text information or graphical information.
And while
01:20:29PM 11
the user remains connected to the website, that ongoing
01:20:32PM 12
exchange of information continues between the user's
01:20:35PM 13
computer and the website.
01:20:36PM 14
Q.
01:20:39PM 15
website, and the website is sending information back to
01:20:41PM 16
the user?
01:20:42PM 17
A.
That is correct.
01:20:42PM 18
Q.
Whether or not there has been any sort of NIT
01:20:46PM 19
installed on the website?
01:20:46PM 20
A.
Correct.
01:20:47PM 21
Q.
And is that the case for websites on Tor as well as
01:20:50PM 22
websites on the regular internet?
01:20:52PM 23
A.
That's correct.
01:20:52PM 24
Q.
And when a user clicks on a link on a website, what
01:20:59PM 25
is happening in the background in order for the user to
So the user's computer is sending information to the

94
01:21:02PM
then go to the next part of that site?
01:21:05PM
A.
01:21:09PM
user's computer sends a request to the website to send
01:21:14PM
that particular page of the website back to the user's
01:21:17PM
computer.
01:21:21PM
hosting the website will respond to that request by
01:21:23PM
sending the requested information to the user's computer.
01:21:37PM
01:21:38PM
When a user clicks on a link within a website, the
MR. BECKER:
No further
questions.
01:21:39PM 10
01:21:41PM 11
Typically the website -- the computer server
MR. FIEMAN:
Some very brief follow-up on this
issue.
01:21:43PM 12
RECROSS-EXAMINATION
01:21:45PM 13
By Mr. Fieman:
01:21:45PM 14
Q.
01:21:49PM 15
Do you have that defense binder in front of you?
01:21:51PM 16
A.
I will pull it up now.
01:21:59PM 17
Q.
And that reflects an email chain between myself,
01:22:06PM 18
Assistant United States Attorney Kate Vaughan, Sam Mautz,
01:22:12PM 19
who is an FBI agent, correct?
01:22:14PM 20
A.
That's correct.
01:22:14PM 21
Q.
And yourself?
01:22:15PM 22
A.
That's correct.
01:22:17PM 23
Q.
You may not have been aware at the time, but at some
01:22:21PM 24
point you became aware that the defense and the United
01:22:25PM 25
States Attorney's Office had a discovery conference in
Agent Alfin, could you turn to Defense Exhibit A8?

95
01:22:27PM
Seattle in early November; is that correct?
01:22:29PM
A.
01:22:32PM
defense at various points in time.
01:22:34PM
Q.
01:22:39PM
that you received and recollect, there was initially a
01:22:45PM
communication from me to Kate Vaughan regarding the
01:22:49PM
homepage and screenshots -- or just the pictures that we
01:22:53PM
are showing of the homepage; is that correct?
01:22:56PM
01:22:58PM 10
I am aware that discovery material was turned over to
And you are aware that, according to this email chain
MR. BECKER:
Object to relevance and personal
knowledge, your Honor.
11
MR. FIEMAN:
Your Honor, he said that he is
01:23:02PM 12
familiar with the picture.
01:23:02PM 13
THE COURT:
It is a fair objection.
I don't know
01:23:04PM 14
what you're asking him here.
01:23:08PM 15
By Mr. Fieman:
01:23:09PM 16
Q.
01:23:14PM 17
contact you about producing a copy of the screen page --
01:23:17PM 18
the homepage -- a screenshot of the homepage?
01:23:23PM 19
on the first page of A08?
01:23:25PM 20
A.
Yes, he did contact me.
01:23:26PM 21
Q.
And he asked you to send a new or different copy of
01:23:32PM 22
the homepage than had originally been produced for the
01:23:36PM 23
defense; is that correct?
01:23:37PM 24
A.
01:23:43PM 25
that I sent to Special Agent Mautz, but I did send him
At some point on November 10th did Agent Mautz
If you look
This email chain doesn't specify exactly which images

96
01:23:50PM
images.
01:23:51PM
Q.
01:23:54PM
November 10th, according to the 6:30 p.m. message,
01:23:58PM
because, as you can see below, "Defense is taking note of
01:24:05PM
the capture dates."
01:24:07PM
A.
01:24:10PM
following up with me, but that appears to be the first
01:24:12PM
time that he contacted me in this chain of email
01:24:15PM
communications.
And Agent Mautz was following up with you on
Do you see that communication?
Just to clarify, you said that Agent Mautz was
01:24:15PM 10
Q.
01:24:18PM 11
obtaining a screenshot of the homepage?
01:24:21PM 12
A.
Not that I recall.
01:24:22PM 13
Q.
So at this point he is contacting you for the first
01:24:27PM 14
time to get a copy of the screen -- of the homepage, is
01:24:30PM 15
that correct, to the best of your recollection?
01:24:31PM 16
A.
To the best of my recollection, yes.
01:24:33PM 17
Q.
And he is doing that, he indicates, because "Defense
01:24:36PM 18
is taking note of the capture dates"?
01:24:40PM 19
A.
Yes, he says that in his email.
01:24:42PM 20
Q.
And when we refer to the capture dates, we are
01:24:46PM 21
talking about the date that particular homepage or image
01:24:50PM 22
was actually posted or appeared, correct?
01:24:52PM 23
A.
01:24:54PM 24
provided to defense in earlier discovery reviews.
01:24:58PM 25
Okay.
Had he contacted you previously about
I assume he was referring to material that was
MR. FIEMAN:
Thank you very much.
No further

97
01:25:00PM
01:25:00PM
01:25:06PM
01:25:21PM
01:25:23PM
admission of some exhibits just to clarify the record, we
01:25:26PM
don't have other witnesses to present, unless your Honor
01:25:28PM
has further questions to be addressed.
01:25:29PM
THE COURT:
01:25:31PM
MR. FIEMAN:
01:25:33PM 10
questions, your Honor.

THE COURT:
You may be
excused.
MR. BECKER:
Your Honor, other than to ask the
No, I don't.
No objection, your Honor, to
admission of everything that has been offered.
01:25:35PM 11
THE COURT:
01:25:36PM 12
MR. FIEMAN:
01:25:39PM 13
Thank you, Agent Alfin.
What now?
No objection to the admission of
everything that has been offered.
01:25:39PM 14
THE COURT:
01:25:50PM 15
MR. BECKER:
I don't know what has been offered.

Your Honor, for purposes of the
01:25:52PM 16
record, first we would offer Exhibits 1 through 9 on our
01:25:57PM 17
exhibit list.
01:26:01PM 18
an exhibit to our previous filings.
01:26:05PM 19
so for completion of the record.
Each one of those exhibits is attached as
01:26:08PM 20
MR. FIEMAN:
01:26:09PM 21
THE COURT:
01:26:15PM 22
01:26:15PM 23
I just wanted to do

They may be admitted.
(Exhibit Nos. 1 - 9 were admitted.)

MR. BECKER:
And we would move for the admission
01:26:17PM 24
of the following:
12A, 12B, 13A, 13B, which we would ask
01:26:26PM 25
under seal because of contraband, 15, 15A, 15B.

At this
98
01:26:42PM
time we would move for the admission of those for the
01:26:44PM
record.
01:26:46PM
01:26:47PM
we should also move in 14, which is the same as Defense
01:26:52PM
Exhibit A15 and A16.
01:26:56PM
all of those --
01:26:56PM
THE COURT:
01:27:03PM
MR. FIEMAN:
01:27:04PM
THE COURT:
MR. FIEMAN:
01:27:05PM 10
MR. BECKER:
01:27:07PM 11
THE COURT:
01:27:13PM 12
Your Honor, I have no objection.
But
I would move for the admission of
What numbers now?
A15 and A16?
Yes, your Honor.

Do you have any objection to those?
No, your Honor.
All of those exhibits may be admitted.
(Exhibit Nos. A15 & A16 were admitted.)
01:27:13PM 13
MR. BECKER:
One other issue, your Honor.
01:27:21PM 14
Exhibits 1 through 5 are all documents that are currently
01:27:24PM 15
under seal.
01:27:26PM 16
with the defense in order to work out those issues, which
01:27:29PM 17
we will.
01:27:29PM 18
We haven't had an opportunity to conference
THE COURT:
01:27:31PM 19
resolve that issue.
01:27:33PM 20
MR. BECKER:
01:27:34PM 21
01:27:41PM 22
01:27:43PM 23
24
01:28:11PM 25
They should remain under seal until we
That would be our request.
We will
confer on that issue.

MR. FIEMAN:
Your Honor, if the government is
complete, we would call Dr. Chris Soghoian.

CHRIS SOGHOIAN
Having been sworn under oath, testified as follows:

99
01:28:11PM
DIRECT EXAMINATION
01:28:13PM
By Mr. Fieman:
01:28:14PM
Q.
Dr. Soghoian, please spell your name for the record.
01:28:16PM
A.
Sure.
01:28:20PM
C-H-R-I-S-T-O-P-H-E-R, Soghoian, S-O-G-H-O-I-A-N.
01:28:28PM
Q.
And where do you work?
01:28:30PM
A.
I am the principal technologist for the Speech
01:28:34PM
Privacy and Technology Project at the American Civil
01:28:38PM
Liberties Union.
My name is Christopher Soghoian.
That is
Although I should clarify, I am actually
01:28:40PM 10
volunteering here in my personal capacity.
01:28:43PM 11
Q.
01:28:47PM 12
this case some time ago, correct?
01:28:48PM 13
A.
That's correct.
01:28:48PM 14
Q.
And are you being paid for your assistance?
01:28:51PM 15
A.
I am being reimbursed for my flights, and my hotel,
01:28:54PM 16
and a per diem for food, but that's it.
01:28:56PM 17
Q.
What is your training and qualifications?
01:28:58PM 18
A.
I have a bachelor's degree in computer science from
01:29:02PM 19
James Madison University.
01:29:06PM 20
computer security from Johns Hopkins University.
01:29:10PM 21
Ph.D. in informatics, which is like a mix of computer
01:29:14PM 22
science and law, from Indiana University.
01:29:17PM 23
specialized there in studying the role that the telephone
01:29:22PM 24
companies play in enabling government surveillance.
01:29:24PM 25
Q.
Correct.
We retained you as a technology expert in
I have a master's degree in

I have a
And I
And have you testified in other court proceedings?

100
01:29:27PM
A.
01:29:31PM
acted as a defense expert for the public defender in
01:29:34PM
Spokane, Washington.
01:29:38PM
bit of experience in training judges and explaining things
01:29:41PM
to judges.
01:29:45PM
Federal Judicial Center in Washington, D.C. last year,
01:29:48PM
explaining surveillance technology to judges.
01:29:51PM
spoke to 60 Article III judges last year at an event
01:29:56PM
organized by Georgetown Law School.
This is my first appearance in court, but I have
I have also -- I also have quite a
I appeared at an event organized by the
I also
01:29:59PM 10
Q.
01:30:02PM 11
everything.
01:30:05PM 12
committee on the Federal Rules of Criminal Procedure?
01:30:07PM 13
A.
I have, yes, sir.
01:30:09PM 14
Q.
And when did you do that?
01:30:10PM 15
A.
I think that was in the fall of 2014.
01:30:14PM 16
Q.
And have you ever had your publications or scholarly
01:30:17PM 17
work cited by a court?
01:30:19PM 18
A.
01:30:24PM 19
several federal courts, including the dissent by the Chief
01:30:28PM 20
Judge of the Ninth Circuit, Alex Kozinski.
01:30:32PM 21
has also been cited by the state supreme court of
01:30:35PM 22
New Jersey and the state supreme court of Massachusetts.
01:30:37PM 23
Q.
01:30:41PM 24
the discovery and materials that relate to Mr. Michaud's
01:30:46PM 25
case?
Slow down a little bit so the court reporter can get
Yes.
You have also testified before the advisory
My research and scholarship has been cited by
My research
Now, as a consultant in this case, have you reviewed

101
01:30:46PM
A.
01:30:49PM
yes.
01:30:49PM
Q.
01:30:52PM
application?
01:30:53PM
A.
I have reviewed the NIT warrant application, yes.
01:30:56PM
Q.
Let me just cut to the chase.
01:30:58PM
explain to the judge what an NIT is and how it works?
01:31:01PM
A.
01:31:02PM
Would you please
Sure.
THE COURT:

Wait a minute.
I didn't get the
question.
01:31:06PM 12
01:31:07PM 13
Did that, for example, include the NIT warrant
MR. BECKER:
01:31:03PM 10
01:31:05PM 11
I have reviewed all documents you have sent to me,
MR. FIEMAN:
I asked him to explain to the court
what an NIT is and how does it work.
01:31:12PM 14
MR. BECKER:
I would object to the foundation and
01:31:15PM 15
speculation, your Honor.
01:31:17PM 16
analysis of a network investigative technique in this
01:31:20PM 17
case, i.e., the NIT in this case --
01:31:23PM 18
THE COURT:
If this isn't based on any
A little more foundation is
01:31:24PM 19
appropriate.
01:31:25PM 20
By Mr. Fieman:
01:31:25PM 21
Q.
01:31:29PM 22
discovery, have you, for example, reviewed all of the
01:31:33PM 23
government's descriptions of the NIT that was deployed in
01:31:38PM 24
this case?
01:31:39PM 25
A.
Dr. Soghoian, in the course of reviewing the
I have read the description of the NIT in this

102
01:31:42PM
warrant, and I have also read the description of the NIT
01:31:44PM
in every public NIT application that is available -- that
01:31:49PM
has become available over the last five or six years.
01:31:52PM
Q.
01:31:57PM
art.
01:32:01PM
of code or technique; is that correct?
01:32:02PM
A.
01:32:06PM
In the computer security community, which I am part of,
01:32:09PM
this is generally described as malware or malicious
When you talk about NIT, that is a kind of term of

It refers in the technology world to a specific type
The government describes this technology as a NIT.
01:32:13PM 10
software.
01:32:13PM 11
Q.
01:32:18PM 12
it as malware?
Can you explain what those are and why you describe
01:32:20PM 13
MR. BECKER:
Objection, again, to the relevance of
01:32:23PM 14
the characterization, your Honor.
01:32:25PM 15
about review of anything that actually happened in this
01:32:27PM 16
case, the NIT in this case.
01:32:31PM 17
the witness' opinion and characterizations of how things
01:32:35PM 18
can be labeled.
01:32:39PM 19
pertinence to the issues the court has to decide here.
01:32:41PM 20
the witness has examined something that was used in this
01:32:44PM 21
case, as opposed to reading the documents, I might not
01:32:48PM 22
object.
01:32:48PM 23
We are not talking
We are talking now based on
I don't see how this has any weight or
THE COURT:
I take this to be preliminary.
01:32:51PM 24
Obviously, it needs to be tied up with the evidence in
01:32:55PM 25
this case.

If
103
01:32:56PM
By Mr. Fieman:
01:32:56PM
Q.
01:33:00PM
the technology and cybersecurity world?
01:33:03PM
A.
01:33:09PM
now know to be NITs for several years.
01:33:12PM
they called them NITs until we found one of the warrant
01:33:17PM
applications a couple of years ago.
01:33:19PM
category of technology --
01:33:21PM
Let's use the word NIT.
Does NIT have a meaning in
I have been studying the government's use of what we

We did not know
But this general
Let me pause and say the FBI is not the only
01:33:24PM 10
government agency in the world that seeks to use
01:33:28PM 11
investigative techniques of this kind.
01:33:31PM 12
governments around the world that use techniques like
01:33:33PM 13
this, and there are many companies that create
01:33:36PM 14
special-purpose technology like this for these
01:33:40PM 15
governments.
01:33:42PM 16
they advertise their features, they describe it in quite
01:33:45PM 17
extensive detail.
01:33:46PM 18
There are many
These companies advertise these products,
And so I have been researching this general category
01:33:49PM 19
of technology for a number of years, and I can describe,
01:33:53PM 20
again, in general terms, how it works.
01:33:57PM 21
Within the class of what the government calls NITs, there
01:34:00PM 22
might be different kinds of NITs.
01:34:03PM 23
very small subset of things, some might do more things.
01:34:06PM 24
But I can tell you generally how these things work.
01:34:09PM 25
There are --
Some NITs might do a
The reason that people in the computer security

104
01:34:12PM
community describe this as malware is that --
Computers
01:34:15PM
are built with cybersecurity protections within them.
01:34:18PM
When you are browsing around on the internet, and you
01:34:21PM
visit a website, under normal circumstances that website
01:34:24PM
is only allowed to get your computer to do certain things.
01:34:29PM
Malicious software, known as malware, tries to get your
01:34:32PM
computer to do things that it would not ordinarily do.
01:34:36PM
01:34:40PM
And in the case of this Tor software that we are

discussing here in this case --
I have been
01:34:44PM 10
researching --
I know the people who are behind the Tor
01:34:46PM 11
Project.
01:34:49PM 12
conferences -- the same academic conferences that I do.
01:34:53PM 13
This is a ten-year-old project that has received millions
01:34:55PM 14
of dollars of research funds to build a very secure piece
01:34:59PM 15
of software that has one primary purpose, which is to hide
01:35:02PM 16
the identity of people using it.
01:35:05PM 17
Q.
They are academics.
Let's slow down.
They go to the same
Now you are talking about the Tor
18
network, in general, correct?
19
A.
Yes.
01:35:09PM 20
Q.
Let's stop there.
01:35:13PM 21
a considerable period of time, you have done research on
01:35:16PM 22
it, and you have also reviewed all of the discovery in
01:35:18PM 23
this case, correct?
01:35:19PM 24
A.
That's correct.
01:35:19PM 25
Q.
Now, you have also seen the various pleadings that
So you have been studying NITs for

105
01:35:22PM
the government has filed where they describe the NIT as
01:35:27PM
seizing information from Mr. Michaud's computer?
01:35:29PM
A.
I have read that, yes, sir.
01:35:30PM
Q.
Can you just describe for the judge the process of
01:35:34PM
how a NIT goes about doing that, in general layman's
01:35:38PM
terms, without getting into any technical features, just
01:35:43PM
in a bread-and-butter way how does that work?
01:35:45PM
01:35:48PM
MR. BECKER:
my objection, your Honor.
I would renew
This is a lay witness'
01:35:51PM 10
interpretation of the words and warrants in discovery.
01:35:55PM 11
is not based on any actual analysis of anything in this
01:35:58PM 12
case.
01:36:00PM 13
in determining any of the issues here.
01:36:03PM 14
disclosure of certain technical information about the
01:36:06PM 15
network investigative technique.
If that's what the
01:36:10PM 16
witness has reviewed, then fine.
But right now we are
01:36:13PM 17
just talking about looking at the legal documents.
01:36:17PM 18
witness' opinion about what legal terms mean -- or what
01:36:20PM 19
terms in legal documents mean, again, I think this is
01:36:24PM 20
irrelevant information that does nothing in order to
01:36:26PM 21
illuminate any of the issues before the court.
01:36:28PM 22
It
This is testimony that is of no value to this court
THE COURT:
We have made
This
I think your objection goes to the
01:36:31PM 23
weight to be attached.
01:36:35PM 24
By Mr. Fieman:
01:36:35PM 25
Q.
Go ahead.
Let's take up that objection for a moment.

Have you
106
01:36:37PM
consulted with another expert retained by the defense
01:36:40PM
called Vlad Cirkovic?
01:36:44PM
A.
I have spoken to Vlad.
01:36:46PM
Q.
You are aware that we had actually requested from the
01:36:48PM
government the entire NIT code, so you could do exactly
01:36:52PM
the type of analysis that Mr. Becker says you have not
01:36:55PM
done?
01:36:56PM
A.
01:36:59PM
would know a lot more than we know right now.
It is true that if we had the complete code, that we
01:37:01PM 10
Q.
01:37:07PM 11
as to the limited code that has been turned over by the
01:37:09PM 12
government, and your extensive ten years of research into
01:37:12PM 13
NITs and technology, have you formed an educated opinion
01:37:16PM 14
about how both NITs in general and this NIT worked?
01:37:20PM 15
A.
01:37:24PM 16
in general.
01:37:26PM 17
Vlad has prepared, and talking and exchanging emails with
01:37:29PM 18
him, I think I have a good idea of what happened here.
01:37:33PM 19
Q.
01:37:35PM 20
of your knowledge?
01:37:35PM 21
A.
01:37:40PM 22
programmed to have a certain basic level of cybersecurity.
01:37:45PM 23
They only will allow websites to instruct them to do a
01:37:48PM 24
limited subset of things.
01:37:52PM 25
people who were using the Tor browser, and so it is
But based upon your consultations with Mr. Cirkovic
I think I have a pretty good idea of how NITs work,

And then in both by reading the report that
Can you just describe that to the judge, to the best
As I was sort of explaining before, computers are
The NIT in this case targeted

107
01:37:55PM
necessary just for this moment to say that the Tor browser
01:37:59PM
is programmed to protect even more information than your
01:38:02PM
normal web browser would protect.
01:38:05PM
Q.
01:38:08PM
and you are working on the Tor network, it is like you
01:38:10PM
have added firewalls or security provisions in your
01:38:14PM
computer to protect your privacy; is that correct?
01:38:16PM
A.
01:38:19PM
protections, but in fact they slow down your experience.
Let's just stop there.
Yes.
So if you have a Tor browser,
And not only do you have these additional
01:38:22PM 10
So people who are using Tor are experiencing a less rich,
01:38:26PM 11
less fast internet, in exchange for these additional
01:38:30PM 12
protections, which protect their privacy, both information
01:38:33PM 13
about where they are going and information about -- and
01:38:37PM 14
also protecting information about the websites themselves.
01:38:40PM 15
Q.
01:38:45PM 16
this case it would be Mr. Michaud's computer, correct?
01:38:47PM 17
A.
01:38:51PM 18
the Tor software, and it has been specially configured to
01:38:54PM 19
protect itself from things that websites might try and do
01:38:58PM 20
to force it to reveal identifying information, like an IP
01:39:02PM 21
address.
01:39:02PM 22
Q.
01:39:06PM 23
process?
01:39:07PM 24
A.
01:39:14PM 25
protecting components.
And those protections are on the user's computer; in
Yes.
There is a special web browser that runs within
When you say "force it to reveal," what is that
So the Tor software has sort of two separate privacy

The first is the Tor network

108
01:39:18PM
itself.
There is a diagram in the book that the
01:39:22PM
prosecution provided that sort of shows how things go
01:39:25PM
through the Tor network.
01:39:29PM
computer contacting the website that you are visiting,
01:39:31PM
with Tor your computer bounces the connection through a
01:39:34PM
bunch of servers along the way.
01:39:36PM
01:39:38PM
instead of passing a note directly to the judge, I would
01:39:41PM
instead pass a note to the lawyer over there, and then the
But, generally, instead of your
And the purpose of that is to hide the trail.
So
01:39:45PM 10
lawyer over there would pass the note to someone else in
01:39:46PM 11
the back, and then eventually it would reach you.
01:39:49PM 12
there in the end, but it might take a bit more time to get
01:39:52PM 13
there because of all these people passing it along.
01:39:54PM 14
is one of the privacy preserving features in Tor, which is
01:39:58PM 15
that it hides the trail through the use of these servers.
01:40:02PM 16
Secondly, the Tor browser --
It gets
That
It is a web browser --
01:40:06PM 17
It is actually a variant of Firefox, which is a very
01:40:08PM 18
popular piece of web browsing software that has been --
19
Q.
Slow it down a little.
01:40:13PM 20
A.
Sorry.
01:40:17PM 21
the Firefox web browser that has been modified to be even
01:40:22PM 22
more secure.
01:40:23PM 23
So there is a special customized version of
Essentially there are tradeoffs on the internet.
01:40:26PM 24
There are some features that make websites more
01:40:29PM 25
interactive, that allow you to have rich media, video,

109
01:40:32PM
sound, an immersive experience.
But those futures can
01:40:36PM
also be exploited by malicious parties to learn private
01:40:41PM
information about you.
01:40:42PM
Q.
01:40:45PM
their intentions, but you are talking in code sense in
01:40:48PM
terms of they are trying to get your computer to do things
01:40:50PM
that you would not otherwise do?
01:40:52PM
A.
01:40:58PM
computer security community.
When you say "malicious parties," you don't mean
I'm sorry.
"Malicious" is a term of art in the

When we say "malicious," we
01:41:01PM 10
mean someone that is trying to do something without the
01:41:02PM 11
knowledge or consent of the computer of the person that it
01:41:05PM 12
is being done to.
01:41:07PM 13
And so the Tor browser has been specially modified to
01:41:10PM 14
turn off many features that regular web browsers have
01:41:15PM 15
enabled.
01:41:19PM 16
the number of ways that a website might try and learn
01:41:22PM 17
private information about the person using the Tor
01:41:24PM 18
software.
01:41:25PM 19
Q.
01:41:27PM 20
the person, the user, at their computer, is not otherwise
01:41:30PM 21
transmitting or wanting to make public; is that correct?
01:41:33PM 22
A.
01:41:37PM 23
anyway.
01:41:41PM 24
computer without your knowledge or consent to begin with.
01:41:44PM 25
The Tor browser transmits less information to websites
And by turning these features off, it reduces
When you say it is private, it is information that
Well, regular people don't transmit this information

This is stuff that is being transmitted by your

110
01:41:47PM
than a normal website -- than a normal web browser
01:41:51PM
transmits.
01:41:52PM
01:41:54PM
refuse requests by websites to reveal information that a
01:41:58PM
normal web browser would otherwise reveal.
01:42:01PM
Q.
01:42:04PM
the discovery, your consultation, Agent Alfin's testimony
01:42:07PM
today about the NIT and how it worked, can you just
01:42:10PM
explain to the judge --
And then in addition to that, the Tor browser will
So that is background.
Now, based on your review of
And really what we want to
01:42:13PM 10
clarify is the locations at which various things happened.
01:42:18PM 11
Can you do that step-by-step from where the NIT is first
01:42:22PM 12
programmed through the capture of data?
01:42:25PM 13
A.
I will do the best that I can.
01:42:27PM 14
Q.
And go slowly.
01:42:28PM 15
A.
Remember, there is one big piece that we don't know
01:42:31PM 16
the answer to, where we don't have some of the code that
01:42:34PM 17
the government hasn't turned over.
01:42:36PM 18
we do have, when someone browses to a website using the
01:42:42PM 19
Tor browser, their computer requests a page.
01:42:47PM 20
are using the Tor browser, your computer asks a website,
01:42:50PM 21
"Please give me this page."
01:42:54PM 22
it available and your browser will then go and take it and
01:42:58PM 23
bring it back to your computer.
01:43:01PM 24
01:43:05PM 25
With the pieces that
So if you
That website will then make
In some cases that web page will contain text, and so

the text will be displayed.
In some cases there will be

111
01:43:08PM
images, and the images will be displayed.
In some cases
01:43:11PM
there is computer programming contained within that
01:43:14PM
website, and it will cause your computer to do some action
01:43:17PM
before additional text might be displayed.
01:43:20PM
Q.
01:43:25PM
the background, can you just clarify what that means in
01:43:29PM
terms of what is being received on the computer in
01:43:32PM
Washington?
01:43:33PM
A.
When Agent Alfin testified about the NIT running in
Sure.
From what we understand, from what has become
01:43:40PM 10
public, the web browser -- the Tor web browser in this
01:43:46PM 11
case would have requested information about a particular
01:43:49PM 12
page on this forum, one of these threads.
01:43:52PM 13
Q.
So the homepage of this website?
01:43:58PM 14
A.
The defendant would have logged in -- is alleged to
01:44:01PM 15
have logged into the homepage, entered a user name and
01:44:05PM 16
password.
01:44:08PM 17
one of these forums.
01:44:12PM 18
is happening -- every time someone is clicking on one of
01:44:15PM 19
these links, their browser is requesting new
01:44:18PM 20
information -- a new web page.
01:44:21PM 21
After that they would have clicked on a link to

And every time there is a click that
According to what the special agent said, the NIT was
01:44:24PM 22
only delivered after someone went into a thread and then
01:44:27PM 23
clicked on a specific post.
01:44:31PM 24
defendant is accused of clicking on that post, the website
01:44:36PM 25
would have given his Tor browser a web page.
So at the point that the
Contained

112
01:44:40PM
within that web page would have been an instruction for
01:44:43PM
the Tor browser -- not for the defendant, but for the Tor
01:44:47PM
browser.
01:44:47PM
Q.
01:44:50PM
see that on the web page?
01:44:52PM
A.
Can a human see it?
01:44:54PM
Q.
Would the user who is looking for, say, a picture on
01:44:58PM
the internet, would they see those instructions?
01:45:01PM
A.
Let's stop there.
When you say "contained," can you
No, there wouldn't have been any instructions visible
01:45:03PM 10
to a regular user.
A high-tech sophisticated person might
01:45:08PM 11
be able to figure that out, but a regular person just
01:45:11PM 12
clicking around is not going to know there has been this
01:45:14PM 13
new special code added to the web page.
01:45:17PM 14
Q.
01:45:20PM 15
you say "sending instructions," it is not instructions to
01:45:22PM 16
the user, in this case allegedly Mr. Michaud, it is
01:45:26PM 17
instructions to the target computer?
01:45:28PM 18
A.
01:45:31PM 19
does not run on the website.
01:45:36PM 20
web browser.
01:45:39PM 21
this."
01:45:42PM 22
browser in this case, in this case in the state of
01:45:45PM 23
Washington.
01:45:47PM 24
received by the Tor browser here in the state of
01:45:50PM 25
Washington that they are run on that computer, and then do
So it is hidden code running in the background.
I want to pause on that word "running."
When
The code
The code always runs on your
So the website tells the web browser, "Do
The code is downloaded to the web browser, the Tor
And it is only when the instructions are

113
01:45:54PM
whatever the NIT is supposed to do.
01:45:56PM
Q.
01:45:58PM
what exactly was the NIT supposed to do when it was
01:46:01PM
inserted into the Washington computer?
01:46:04PM
A.
01:46:08PM
complicated.
01:46:09PM
Q.
Go slowly.
01:46:10PM
A.
We don't know one of the important bits of
01:46:14PM
information.
And in this case, from the testimony you have heard,
Okay.
So this is where it gets a little bit
The Tor browser is not supposed to give up
01:46:18PM 10
its real IP address to anyone.
01:46:21PM 11
that you use Tor.
01:46:22PM 12
Q.
01:46:25PM 13
running on the Washington computer?
01:46:26PM 14
A.
01:46:30PM 15
would have been running there.
01:46:32PM 16
not supposed to do is give up your IP address.
01:46:36PM 17
website that you are visiting with a Tor browser asks for
01:46:38PM 18
your IP address, the Tor browser will say no.
01:46:42PM 19
And that Tor browser --
That is the one reason
That is a program that is
On the computer of the defendant.
If you think --
The Tor browser
The one thing the Tor is

And if a
I know you have said think of the Tor
01:46:45PM 20
browser like a firewall.
Think of it more like a guard
01:46:48PM 21
dog, a guard dog around a house.
01:46:51PM 22
trained to bark at every person who approaches the house,
01:46:55PM 23
and someone approaches and the guard dog doesn't bark,
01:46:59PM 24
well, you have to ask, what happened?
01:47:02PM 25
guard dog bark?
If the guard dog is
Why didn't the
So something mysterious happened in this

114
01:47:07PM
case that caused the Tor browser to even let the NIT do
01:47:10PM
what it wanted to do, which was to collect this
01:47:13PM
information that the Tor browser would never ordinarily
01:47:16PM
give up.
01:47:16PM
Q.
01:47:19PM
have all the code.
01:47:23PM
code that is sent to the computer in Washington, correct?
01:47:26PM
A.
01:47:29PM
Washington State that somehow causes the computer in
So we don't know exactly the process because we don't

But just to clarify, the NIT is hidden
It is hidden code that is sent to the computer in
01:47:31PM 10
Washington state to do something that it would not
01:47:35PM 11
normally do.
01:47:35PM 12
Q.
01:47:39PM 13
is now giving instructions or overriding instructions on
01:47:43PM 14
that Washington computer?
01:47:46PM 15
A.
01:47:49PM 16
could think of it as maybe putting a sleeping pill in the
01:47:52PM 17
dog food.
01:47:53PM 18
Q.
01:47:58PM 19
the Washington computer after this delivery, I guess from
01:48:02PM 20
Virginia, what is the next step in what the NIT, from all
01:48:05PM 21
of your research and review of discovery, did?
01:48:08PM 22
A.
01:48:12PM 23
within the Tor browser, it then had to collect information
01:48:16PM 24
from the computer that it wished to send back.
01:48:19PM 25
case it would be the IP address, which is an address that
So not only is the NIT going to Washington State, it
Yes.
If you want to use the guard dog analogy, you
Now, once those override instructions are executed on
So once the NIT had bypassed the security controls

In this
115
01:48:22PM
links the computer to a residential internet account.
It
01:48:25PM
would be what is called the MAC address, which is a unique
01:48:29PM
serial number associated with your wi-fi card, programmed
01:48:33PM
in the factory of the wi-fi card manufacturer.
01:48:37PM
would be some other information about the operating system
01:48:39PM
that the special agent read out when he was on the stand,
01:48:43PM
the user name on the computer, which version of Windows
01:48:46PM
you are running, some basic information.
01:48:49PM
There
But to learn that information, before the NIT could
01:48:51PM 10
transmit that information back to the computer in
01:48:54PM 11
Virginia, it would first have to go and collect it.
01:48:58PM 12
you think of this as information that is in a house, well,
01:49:00PM 13
maybe one piece of it is in the bedroom, and another piece
01:49:04PM 14
is in the living room, one piece of it is in the drawer.
01:49:06PM 15
The NIT first has to go and collect the information from
01:49:09PM 16
different parts of the computer.
01:49:13PM 17
that information, then it would transmit it back to the
01:49:16PM 18
server in Virginia.
01:49:18PM 19
Q.
01:49:24PM 20
security or overrides security features on the Washington
01:49:27PM 21
computer.
01:49:30PM 22
actually collects data or evidence on that computer.
01:49:34PM 23
then the third step, after it has seized the Washington
01:49:37PM 24
data in this case, it then wraps it up in like a little
01:49:42PM 25
evidence bag and delivers it to the FBI in Virginia?
So if
And then once it has
So if I understand the process, the NIT bypasses
First step, right?
And then second, it

And
116
01:49:45PM
A.
01:49:49PM
evidence bag.
01:49:52PM
Virginia.
01:49:52PM
Q.
01:49:57PM
is stored, apparently, on an FBI server; is that correct?
01:50:01PM
A.
01:50:06PM
government's control.
01:50:10PM
this room about where we think the server is or which
01:50:13PM
company we think might have been running the server.
That sounds right.
Although I'm not sure about the
It transmits it back to the computer in
And then once that data has been transmitted back, it
The special agent said that the server is under the

I am not sure how much I can say in
01:50:15PM 10
Q.
I don't want you to --
01:50:17PM 11
A.
A computer in Virginia.
01:50:20PM 12
Q.
Is it then fair to say after this search and seizure
01:50:24PM 13
in Washington, then really what is going on is it is in
01:50:26PM 14
like an evidence room in Virginia where they keep that
01:50:28PM 15
evidence until they need it?
01:50:31PM 16
01:50:33PM 17
MR. BECKER:
Honor.
01:50:34PM 18
Object to leading at this point, your
I think we are just reiterating testimony.

THE COURT:
That is a fair objection.
01:50:36PM 19
By Mr. Fieman:
01:50:36PM 20
Q.
Describe then what the storage in Virginia is about.
01:50:38PM 21
A.
Once the data has been transmitted by the NIT, I have
01:50:43PM 22
no idea what the government would do with it.
01:50:46PM 23
that it was transmitted to a computer in Virginia.
01:50:49PM 24
that point we have no --
01:50:51PM 25
information about how it is stored, or who has access to
We know
At
They haven't turned over

117
01:50:54PM
it, or whether it is printed on paper or stored live in a
01:50:58PM
computer.
01:51:01PM
Q.
01:51:08PM
parts of the code that are missing data, and so you have
01:51:12PM
to be a little reserved about your opinions, correct?
01:51:14PM
A.
01:51:21PM
browser to do this thing that the Tor browser would never
01:51:25PM
normally do.
01:51:29PM
general way of describing this is to exploit security
01:51:35PM 10
01:51:36PM 11
We don't know how it is maintained.
Now, you had just briefly mentioned that there are
I do not know how the NIT was able to get the Tor
The general way that one does this -- the
flaws in software.
In fact, when I started testifying here I used the
01:51:39PM 12
term "malware."
01:51:44PM 13
the term "malware" really describes software that is doing
01:51:48PM 14
things that the person whose computer it is running on
01:51:54PM 15
doesn't know it is doing or doesn't want it to do.
01:51:58PM 16
many, many cases malware, to effectively function, first
01:52:01PM 17
must exploit some security flaw in the software that is
01:52:05PM 18
running on your computer, whether that is your web
01:52:07PM 19
browser, a piece of email software, or PowerPoint, or
01:52:11PM 20
Microsoft Word.
01:52:12PM 21
And in the computer security community
In
All of these programs that we run on our computer, the
01:52:15PM 22
engineers who write them do the best job they can, but
01:52:19PM 23
sometimes they make mistakes.
01:52:21PM 24
out there that are looking to find these flaws.
01:52:24PM 25
can find one of these flaws, you can write special code
There are a lot of people

If you
118
01:52:27PM
that takes advantage of the flaw, and then lets you run
01:52:30PM
code on a computer that the computer probably shouldn't
01:52:33PM
run normally, or obtain information that you wouldn't
01:52:36PM
normally be able to get.
01:52:37PM
Q.
01:52:41PM
you this:
01:52:44PM
the testimony, if the NIT had not been delivered to the
01:52:47PM
Washington computer, and collected the data for the
01:52:51PM
Washington computer, would the website otherwise have the
And you say not normally be able to get.
Let me ask
Based on all your review of the discovery and
01:52:56PM 10
IP address and other identifying data in the normal course
01:52:59PM 11
of events?
01:53:00PM 12
A.
01:53:03PM 13
pieces of information.
01:53:11PM 14
No.
The Tor browser is programmed to protect those
MR. FIEMAN:
Your Honor, I just have one other
01:53:13PM 15
brief area and then I will be able to wrap up.
01:53:14PM 16
By Mr. Fieman:
01:53:14PM 17
Q.
01:53:17PM 18
when the NIT was sent to Washington, how it was deployed.
01:53:20PM 19
You have reviewed the warrant application in this case --
01:53:24PM 20
the NIT warrant application?
01:53:26PM 21
A.
Yes, sir.
01:53:26PM 22
Q.
You are aware the warrant application, I think,
01:53:29PM 23
allowed for the FBI to deploy -- to send the NIT
01:53:35PM 24
anywhere at the time people logged into the homepage; is
01:53:37PM 25
that correct?
From a technical standpoint, I want to ask you about

119
01:53:37PM
A.
01:53:41PM
one can be aware as a non-lawyer.
01:53:43PM
Q.
01:53:48PM
collect all this information from anywhere in the world,
01:53:50PM
correct?
01:53:50PM
A.
01:53:56PM
computer, the government doesn't know where the computers
01:53:58PM
are.
01:54:01PM
could be in Utah, it could also be in France or Spain.
I am aware of what the warrant authorized, as far as
As of that point, the NIT could be deployed and
At the time that the NIT is delivered to the
The computer could be in the state of Washington, it
01:54:05PM 10
Again, the Tor network is a global network with hundreds
01:54:09PM 11
of thousands of users located around the world.
01:54:13PM 12
no way of knowing ahead of time where any one of those
01:54:16PM 13
users of Tor might be.
01:54:18PM 14
Q.
01:54:21PM 15
could be deployed at the homepage, was there any technical
01:54:26PM 16
reason that you are aware of why the website would have to
01:54:31PM 17
retain, and publish, and distribute child pornography
01:54:37PM 18
inside the website in order to accomplish the NIT
01:54:40PM 19
deployment?
01:54:40PM 20
Now, just from a technical standpoint, if the NIT
MR. BECKER:
01:54:42PM 21
already ruled on this issue.
01:54:45PM 22
of the suppression issues here.
01:54:49PM 23
There is
MR. FIEMAN:
You have
This is not relevant to any
Your Honor, I just want to talk about
01:54:50PM 24
the point of deployment, and that the point of deployment
01:54:54PM 25
could have occurred from the homepage in all cases.

120
01:54:56PM
THE COURT:
I'm not sure I understand the question
01:54:59PM
here.
01:55:00PM
By Mr. Fieman:
01:55:00PM
Q.
01:55:03PM
collect IP addresses pursuant to this warrant, could not
01:55:06PM
have been deployed simply from the homepage, that you are
01:55:10PM
aware of?
01:55:11PM
A.
01:55:17PM
The fact that the government chose to deliver it on a few
Is there any reason why all of the NITs, in order to
You can deliver a NIT from any web page on that site.
01:55:22PM 10
select pages after people logged in or after people had
01:55:24PM 11
clicked a few links, that seems, from a technical
01:55:26PM 12
standpoint, arbitrary.
01:55:28PM 13
homepage before people logged in or after people logged
01:55:42PM 14
in.
01:55:46PM 15
Q.
01:55:51PM 16
like me, Dr. Soghoian.
01:55:58PM 17
physical process of the NIT search that you believe we
01:56:02PM 18
have not covered that the court should be aware of?
01:56:06PM 19
A.
01:56:21PM 20
have been litigating today, no.
01:56:26PM 21
01:56:27PM 22
Slow down.
That's okay.
I am just thinking.
MR. FIEMAN:
You are an east coaster
Is there any point in sort of the
For the issues that you guys
Your Honor, do you have any questions
that we have not addressed at this point?
01:56:29PM 23
THE COURT:
01:56:31PM 24
MR. FIEMAN:
01:56:35PM 25
They could have even put it on the
No.
Go ahead.

CROSS-EXAMINATION

121
01:56:38PM
By Mr. Becker:
01:56:45PM
Q.
Good afternoon, Dr. Soghoian.
01:56:47PM
A.
Hi.
01:56:48PM
Q.
Would you agree that the Tor Project does not
01:56:56PM
guarantee perfect anonymity to its users?
01:56:59PM
A.
01:57:02PM
Project tells people that it cannot deliver perfect
01:57:05PM
security.
01:57:05PM
Q.
My understanding is that the homepage of the Tor
Right from the homepage of the Tor Project it advises
01:57:08PM 10
its users that it cannot deliver, as you said, perfect
01:57:11PM 11
security; is that correct?
01:57:12PM 12
A.
01:57:16PM 13
about ten years old.
01:57:20PM 14
of grants.
01:57:22PM 15
security research community has come up with thus far.
01:57:25PM 16
Q.
It has some great uses, is that fair to say?
01:57:28PM 17
A.
The Tor Project is being used by Facebook, it is
01:57:33PM 18
being used by newspapers, ProPublica, and many newspapers
01:57:38PM 19
that now run whistle blowing websites.
01:57:41PM 20
know, the Tor Project was originally -- the technology was
01:57:44PM 21
created by the U.S. Navy, the Naval Research Lab, and the
01:57:47PM 22
U.S. government has been and continues to be the biggest
01:57:51PM 23
funder of Tor.
01:57:51PM 24
Q.
01:57:55PM 25
positive purposes, correct?
What I will say, though, is that the Tor Project is

It has received millions of dollars
It is the best thing that the computer
As I'm sure you
As we said, it can be used for many laudable,

122
01:57:56PM
A.
01:58:00PM
used by many law enforcement agencies so that they can
01:58:03PM
conduct covert investigations online.
01:58:05PM
Q.
01:58:09PM
purposes?
01:58:09PM
A.
That is a complicated question.
01:58:11PM
Q.
Is it?
01:58:12PM
A.
Yes.
01:58:16PM
the Navy created Tor, the purpose was to allow naval
That is correct.
And my understanding is it is also
Do you agree it can also be misused for illicit
Because the original creators of Tor --
When
01:58:20PM 10
investigators to research people online so that they could
01:58:23PM 11
investigate whatever crimes the Navy is researching
01:58:26PM 12
without tipping off the world with the fact that the Navy
01:58:30PM 13
is researching them.
01:58:32PM 14
that is protecting the privacy of naval investigators, and
01:58:35PM 15
the only people who are using it are naval investigators,
01:58:38PM 16
well, then you are not anonymous.
01:58:40PM 17
Q.
Are they the only people using Tor?
01:58:42PM 18
A.
No.
01:58:42PM 19
Q.
Would you agree that criminals use Tor?
01:58:45PM 20
A.
That is by design.
01:58:46PM 21
Q.
Criminals use Tor by design?
01:58:49PM 22
A.
When the Navy created Tor, and put the technology out
01:58:52PM 23
there, they knew that they would have both good and bad
01:58:55PM 24
users.
01:58:57PM 25
Q.
Now, if you have this technology
If you only have one --
So you agree there are good --

123
01:58:59PM
MR. FIEMAN:
Your Honor, if Dr. Soghoian could
01:59:01PM
finish his answer.
01:59:02PM
THE COURT:
01:59:05PM
THE WITNESS:
01:59:08PM
using Tor, then the moment a website receives someone
01:59:11PM
coming from Tor -- receives a request from someone using
01:59:15PM
Tor, they know that it is the U.S. government.
01:59:19PM
creators of Tor have a phrase they use, and they use it in
01:59:23PM
research papers and elsewhere, it is that anonymity loves
You interrupted the witness.

If you only have naval investigators
So the
01:59:27PM 10
company.
If you want to have a technology that lets
01:59:30PM 11
people blend into the crowd, you need a crowd.
01:59:33PM 12
creators of Tor from day one knew that there would be uses
01:59:38PM 13
of Tor that society would love and uses of Tor that
01:59:42PM 14
society would not love as much.
01:59:44PM 15
By Mr. Becker:
01:59:46PM 16
Q.
01:59:50PM 17
use Tor to mask your identity while committing crimes,
01:59:53PM 18
correct?
01:59:54PM 19
A.
01:59:58PM 20
online, and people can commit crimes online.
02:00:00PM 21
Q.
02:00:03PM 22
commit crimes online through Tor?
02:00:07PM 23
A.
02:00:11PM 24
saying, can you use a car to commit a crime?
02:00:14PM 25
I guess so.
Let's back around to my question.
And so the
We agree you can
You can use Tor to mask your identity when you are
You can use Tor to mask your identity while you
Tor is a communication technology.
That is like
Well, yeah,
But it is a regular technology that has good

124
02:00:17PM
users and bad users.
02:00:21PM
some kind of morality associated with it.
02:00:25PM
FedEx, or the post office, or the telephone line, it is a
02:00:29PM
core communications and transportation technology.
02:00:31PM
Q.
02:00:34PM
what sort of communication technology that criminals are
02:00:38PM
using, law enforcement needs to take action based on
02:00:41PM
whatever that technology is; is that fair to say?
02:00:43PM
A.
Sure.
That doesn't mean the technology has

It is like
And I'm sure we would agree that no matter
I think if law enforcement is concerned about people
02:00:47PM 10
using Tor -- about criminals using Tor, I think the most
02:00:51PM 11
rational approach would be to stop the U.S. government
02:00:54PM 12
from funding Tor.
02:00:55PM 13
Q.
02:00:58PM 14
investigated?
02:00:58PM 15
A.
02:01:01PM 16
want criminals to hide their identity using Tor, then the
02:01:05PM 17
U.S. government should stop writing the checks that are
02:01:09PM 18
paying for Tor to be developed.
02:01:11PM 19
the availability of a technology that lets people hide,
02:01:14PM 20
and you don't think -- you think it is being misused, why
02:01:17PM 21
are you paying for it?
02:01:23PM 22
Q.
02:01:26PM 23
You haven't reviewed any computers or digital evidence
02:01:28PM 24
related to this case; is that right?
02:01:29PM 25
A.
You don't want criminals who are using Tor to be
No, I am not saying that.
I am saying if you don't
If you are worried about
Just cut it off.
Let me ask you some questions about a different area.
No, sir.

125
02:01:30PM
Q.
02:01:33PM
seized from the defendant's home?
02:01:34PM
A.
No, sir.
02:01:34PM
Q.
You haven't reviewed any computer code that has been
02:01:38PM
provided in discovery, correct?
02:01:39PM
A.
02:01:44PM
computer code provided to him by DOJ.
02:01:48PM
report that Vlad sent to me, but I have not personally
02:01:52PM
reviewed the NIT code.
You haven't reviewed any of the computers that were
So Vlad, who is our other expert, he has reviewed
02:01:55PM 10
02:01:57PM 11
MR. BECKER:
I have read the
Your Honor, I would make a Jencks
request for that report, if we don't have it.
02:01:59PM 12
MR. FIEMAN:
I actually don't either, your Honor.
02:02:01PM 13
I was unaware of any written report from Mr. Cirkovic.
02:02:12PM 14
am not sure there is one at this point.
02:02:14PM 15
has been, obviously, a lot of conversations with the
02:02:15PM 16
various experts on all sides.
02:02:21PM 17
turn over.
02:02:22PM 18
By Mr. Becker:
02:02:23PM 19
Q.
02:02:25PM 20
communications you have had with the defense expert about
02:02:26PM 21
the analysis of the code?
02:02:28PM 22
A.
02:02:31PM 23
his initial analysis of the shell code.
02:02:34PM 24
Q.
02:02:37PM 25
that?
Although, there
So I don't have a report to
I will make inquiries, your Honor, absolutely.
Dr. Soghoian, can you describe the written
Sure.
He sent me a few-paragraph email describing
Did you sign a protective order before you received

126
02:02:37PM
A.
02:02:42PM
retained.
02:02:47PM
I am pretty sure I did.
02:02:51PM
sent me the protective order and asked me to agree to it.
02:02:54PM
I would have to consult my records to see if I signed
02:02:57PM
something and sent it back.
02:02:58PM
MR. BECKER:
02:03:01PM
witness has testified about a particular written
02:03:03PM
communication during the course of this proceeding.
02:03:06PM 10
I agreed to a protective order when I first got

Whether I signed something, I don't remember.
The public defender definitely
Your Honor, I would request --
The
would request that and other communications.
02:03:11PM 11
MR. FIEMAN:
02:03:13PM 12
THE WITNESS:

Is there any way I can ask for a
02:03:15PM 13
glass of water?
Is that possible?
02:03:46PM 14
By Mr. Becker:
02:03:48PM 15
Q.
02:03:50PM 16
communications on Tor, it is correct that when a user
02:03:54PM 17
communicates through Tor, the user is still using IP
02:03:58PM 18
addresses in order to communicate, correct?
02:04:02PM 19
A.
Someone doesn't use an IP address to communicate.
02:04:05PM 20
Q.
IP addresses route communications, even through Tor?
02:04:08PM 21
A.
No, an IP address is a number assigned to you.
02:04:12PM 22
use the internet, and in particular the IP protocol, to
02:04:16PM 23
communicate.
02:04:19PM 24
like --
02:04:21PM 25
your physical address to communicate, you use the post
Doctor, just a basic point.
In terms of
But you don't use your address.
You
It is not
When you write a letter to someone, you don't use

127
02:04:24PM
office to communicate, and your address is printed in the
02:04:26PM
top left-hand corner of the letter.
02:04:28PM
Q.
02:04:32PM
that be a fair statement?
02:04:33PM
A.
02:04:37PM
is a network on top of the internet.
02:04:43PM
Q.
02:04:46PM
not using IP addresses to communicate?
02:04:48PM
A.
Very well.
Does Tor not use IP addresses?
Tor is what is called an overlay network.
Would
So there
Would it be correct to say using Tor means you are
Again, as I said before, you don't use an IP address
02:04:51PM 10
to communicate.
You have an IP address.
You use the IP
02:04:55PM 11
protocol to communicate.
02:04:59PM 12
am lost on these details, but you don't use an IP address
02:05:05PM 13
to communicate.
02:05:06PM 14
Q.
02:05:12PM 15
"malicious."
02:05:17PM 16
that was sending something or using something without
02:05:21PM 17
knowledge or consent; is that fair?
02:05:24PM 18
A.
I'm sorry.
02:05:26PM 19
Q.
Sure.
02:05:29PM 20
"malicious."
02:05:33PM 21
as something happening without knowledge or consent?
02:05:35PM 22
A.
That is a component of malware, yes, sir.
02:05:40PM 23
Q.
Would it be possible for that communication to be
02:05:44PM 24
authorized and for you to still describe it as malicious?
02:05:49PM 25
A.
I am sorry if it sounds like I
You used and defined the term earlier that you called
You defined that as someone who -- an entity
Can you ask that question again, please?
You were defining a term earlier as

You said in your community you define that
So the question is, can something be authorized and

128
02:05:51PM
still malicious?
02:05:53PM
Q.
Yeah.
02:05:54PM
A.
Authorized by whom?
02:05:56PM
Q.
A court.
02:05:59PM
A.
I think in the computer security community malware is
02:06:05PM
really about -- the definition of malware depends on the
02:06:08PM
knowledge of the user and the consent of the user.
02:06:11PM
Q.
02:06:21PM
02:06:22PM 10
So you don't think the courts have the ability to -MR. BECKER:
I will withdraw that.
No further
questions, your Honor.
02:06:24PM 11
MR. FIEMAN:
02:06:27PM 12
Very briefly, your Honor.
02:06:30PM 13
By Mr. Fieman:
02:06:31PM 14
Q.
02:06:33PM 15
asked you whether Tor --
02:06:36PM 16
perfect security.
02:06:38PM 17
A.
I do recall that exchange.
02:06:39PM 18
Q.
Is it also fair to say that a burglar alarm or a home
02:06:43PM 19
alarm does not deliver perfect security?
02:06:45PM 20
A.
02:06:48PM 21
front door.
02:06:48PM 22
Q.
02:06:51PM 23
security, does that make it okay for somebody to break the
02:06:54PM 24
lock on your front door and go in and take information
02:06:56PM 25
from your home?
Mr. Becker started with a very simple question.
He
Tor does not promise to deliver
Do you recall that?
That is correct, and neither does the lock on my
But the fact that it doesn't deliver perfect

129
02:06:57PM
A.
02:07:01PM
I will say --
02:07:01PM
Q.
Just as a matter of common sense.
02:07:03PM
A.
As an individual, no, it doesn't make it okay.
02:07:08PM
MR. FIEMAN:
02:07:15PM
THE COURT:
02:07:19PM
expect privacy with whatever is on their computer and on
02:07:25PM
the internet?
02:07:26PM
I am not sure if that is the right question for me.
THE WITNESS:
Thank you.
No further questions.
It sort of sounds like no one should
It is very hard for individuals to
02:07:28PM 10
protect their privacy online.
02:07:35PM 11
the government has spent so much money trying to create
02:07:39PM 12
technologies that let people protect their privacy.
02:07:43PM 13
really hard for the average person to protect their
02:07:45PM 14
privacy online.
02:07:48PM 15
privacy, we have to work hard.
02:07:52PM 16
internet experience.
02:07:57PM 17
that is not as easy to use in order to protect our
02:08:00PM 18
privacy.
02:08:00PM 19
It is for that reason that
It is
Those of us who are trying to protect our

Sometimes we get a slower
Sometimes we have to use software
There is a huge amount of research that is going on in
02:08:03PM 20
this space to create tools that let the average person
02:08:06PM 21
protect themselves.
02:08:11PM 22
years trying to help the legal community to protect their
02:08:13PM 23
privacy, trying to get law firms and the courts to employ
02:08:17PM 24
basic privacy and security technology to protect what you
02:08:21PM 25
all are doing.
I have spent much of the last few
It is hard for the average person when

130
02:08:24PM
this stuff is so high-tech.
02:08:27PM
years we will get better and easier technology that will
02:08:31PM
protect people.
02:08:34PM
02:08:39PM
it, I guess, we came to the Tor instructions, or whatever,
02:08:45PM
that say that it does not deliver perfect security.
02:08:49PM
there any perfect security at this point, other than not
02:08:55PM
putting it in there?
02:08:57PM
THE WITNESS:
02:09:00PM 10
THE COURT:
My hope is over the next few
We started this -- or in the middle of
Is
In my community, and in the computer
security community, we use concepts like defense in depth.
02:09:03PM 11
THE COURT:
02:09:04PM 12
THE WITNESS:
What?
Defense in depth.
So rather than
02:09:08PM 13
having one wall protecting your castle, you have ten
02:09:12PM 14
walls.
02:09:15PM 15
wall, they still have nine more they have to overcome.
That way if the barbarians get over the first
02:09:18PM 16
THE COURT:
02:09:21PM 17
THE WITNESS:
That is kind of what Tor does?

The Tor has at least two walls.
02:09:23PM 18
Probably over the next few years they are going to add
02:09:25PM 19
some more.
02:09:32PM 20
week -- a Department of Homeland Security official, about
02:09:34PM 21
the technology they are funding to help create even more
02:09:37PM 22
walls.
02:09:41PM 23
have happened in the last few years, the OPM breach, where
02:09:45PM 24
all these federal employees had their private information
02:09:48PM 25
lost and stolen by China, it is really hard to design
I was having lunch with a DHS official this
When you look at some of the data breaches that

131
02:09:51PM
02:09:54PM
The old approach was let's keep the bad guys out.
02:09:58PM
the approach is, how do we stop the bad guys before they
02:10:01PM
get all the way to the inner room of the house, or how do
02:10:05PM
we limit their access to information.
02:10:11PM
race going on right now between those who are trying to
02:10:13PM
protect data and those who are trying to exploit data.
02:10:17PM
This is a really interesting time.
02:10:20PM
is for regular people it is really hard to protect
02:10:23PM 10
secure software and to protect data.
There is an arms
The unfortunate thing
yourself online.
02:10:25PM 11
THE COURT:
02:10:28PM 12
THE WITNESS:
02:10:33PM 13
THE COURT:
02:10:35PM 14
MR. FIEMAN:
02:10:37PM 15
Okay.
Thank you.
Thank you, sir.

Any other evidence to be offered here?
No other evidence, your Honor, from
the defense.
02:10:47PM 16
THE COURT:
Let me figure here a little bit.
02:11:17PM 17
practical sense, you have about a half hour apiece to
02:11:20PM 18
argue this, which should be enough.
02:11:24PM 19
U.S. Supreme Court they won't give you that much time.
02:11:29PM 20
02:11:31PM 21
Now
MR. FIEMAN:
In a
When you get to the
Who would you like to hear from
first?
02:11:31PM 22
THE COURT:
02:11:39PM 23
MR. FIEMAN:
Well, it is your motion, or motions.

Your Honor, I think we are down to
02:11:41PM 24
essentially the core issue around which everything else
02:11:45PM 25
revolves.
And it is really a brick and mortar issue.

We
132
02:11:53PM
have resolved it.
02:11:59PM
located in Vancouver, Washington.
02:12:07PM
is limited to persons and property in the Eastern District
02:12:11PM
of Virginia.
02:12:12PM
02:12:18PM
your Honor, when you issued your order on Wednesday was,
02:12:22PM
where did this search happen?
02:12:28PM
response citing the government's own stipulations in other
02:12:35PM
NIT cases, and its own pleadings.
02:12:40PM 10
02:12:42PM 11
This search happened on a computer
The first question that you asked us to respond to,
We gave you a written
This was a Washington
search.
Now, in and of itself, is that unconstitutional, or a
02:12:46PM 12
bad thing?
02:12:50PM 13
confronting is severalfold.
02:12:52PM 14
The warrant on its face
No.
But the problem that the government is
One is, as we cited, they obtained a warrant in
02:12:56PM 15
Virginia that on its face is limited to Virginia.
02:13:00PM 16
is a simple, straightforward rule.
02:13:06PM 17
and all the other cases, that say if the search exceeds
02:13:12PM 18
the scope, the authorization occurs at a location that is
02:13:15PM 19
not authorized, suppression is automatic.
02:13:19PM 20
good-faith issues, there are no Franks issues.
02:13:22PM 21
And it
We cited Sedaghaty,
There is no
So the question is then, why did the government submit
02:13:27PM 22
a warrant to the magistrate judge in Virginia which on its
02:13:33PM 23
face informed Judge Buchanan that this is an Eastern
02:13:37PM 24
District of Virginia search, when previously they had at
02:13:42PM 25
least indicated in the Cottom case and the other, that the

133
02:13:46PM
02:13:51PM
02:13:57PM
in the course of these several hours of proceedings
02:14:00PM
exactly why they did that.
02:14:05PM
decision in In Re Warrant, and looking at the plain
02:14:09PM
language of Rule 41, which they are in the process of
02:14:14PM
trying to get changed, because it does not allow for this,
02:14:20PM
they obtained authorization.
02:14:24PM
well intentioned, whether they disclosed everything, that
02:14:26PM 10
02:14:29PM 11
searches occurred both in the district and elsewhere?

I respectfully submit to your Honor that you have seen
Because after Judge Smith's
No matter whether it was
warrant says Eastern District of Virginia.

And Mr. Michaud's data was not only seized here in
02:14:35PM 12
Washington, but they in fact had to bypass security
02:14:39PM 13
measures, like the house alarms, on his computer in
02:14:42PM 14
Washington, look through the data on his computer in order
02:14:46PM 15
to get the identifying information that they sought, and
02:14:49PM 16
then took it back to the evidence room in Virginia.
02:14:54PM 17
In their own pleadings that we have shown to you, they
02:14:58PM 18
always refer to this as information seized from
02:15:00PM 19
Mr. Michaud's computer.
02:15:03PM 20
target -- the target being the server in Washington, that
02:15:07PM 21
they are going to retrieve the data from there, the whole
02:15:09PM 22
point of this is they couldn't get that information in
02:15:12PM 23
Virginia.
02:15:16PM 24
computers to get it.
02:15:19PM 25
unfortunately for them, still not allowed by Rule 41.
So all of this about the
They had to go everywhere else to target

Your Honor, that is, first of all,

134
02:15:24PM
More importantly, what has been driving my sense of
02:15:26PM
frustration with this case, if you want to do that, make
02:15:32PM
it clear to the judge that you are trying to do that.
02:15:35PM
I honestly believe that Judge Buchanan, when she
02:15:38PM
looked at this warrant, because it is what I interpreted
02:15:41PM
the warrant to mean when I first read it, that they were
02:15:45PM
going to search any number of computers in the Eastern
02:15:47PM
District of Virginia that might be logging into this site.
02:15:50PM
But you will not find anything that tells the judge this
02:15:53PM 10
is a worldwide warrant.
02:15:56PM 11
warrant itself, it says Eastern District of Virginia,
02:15:59PM 12
stop, period, nothing more.
02:16:04PM 13
are in Virginia that have been caught up in this case,
02:16:07PM 14
they may have to raise different issues.
02:16:12PM 15
If you look at the face of the
So for those defendants who
And that's why I have been hitting at the duty of
02:16:15PM 16
candor.
02:16:20PM 17
way through the courts.
02:16:23PM 18
amending the rule -- the Supreme Court amending the rule,
02:16:25PM 19
if eventually that's what it does, because that is what
02:16:28PM 20
the Department of Justice is hoping for, then the law will
02:16:31PM 21
change.
02:16:31PM 22
Your Honor, it may be that this needs to work its

It may be that the judges, in
But as long as the law stands, the government needs to
02:16:33PM 23
tell the judges exactly what kind of authorization they
02:16:37PM 24
are seeking.
02:16:42PM 25
operations and technology, Amy Hess, as we cited, not
And not in the words of their own head of

135
02:16:46PM
leaving it for the judges to try and figure out what is
02:16:49PM
going on, hoping against hope they won't ask the follow-up
02:16:53PM
questions, but to make it plain.
02:16:58PM
Judge Kozinski said in the CDT decisions, a duty of
02:17:06PM
candor.
02:17:06PM
02:17:09PM
dispositive issue, to look at the four corners of the
02:17:12PM
warrant, what is printed on the face, and after all of
02:17:16PM
this testimony and the government's pleadings, which we
And that is exactly what
Now, your Honor, I just ask you, in terms of the
02:17:19PM 10
would direct you to, it is a Washington search on an
02:17:22PM 11
Eastern District of Virginia warrant.
02:17:27PM 12
very simple way to decide a very complex issue, but
02:17:30PM 13
everything else feeds into that.
02:17:36PM 14
Why did they draft it that way?
It sounds like a
Now let's move
02:17:40PM 15
forward.
02:17:44PM 16
never said or claimed that Rule 41 does not apply.
02:17:48PM 17
is no exemptions to Rule 41.
02:17:54PM 18
18 U.S. 3103.
02:18:00PM 19
with it.
02:18:03PM 20
was more expansive, but it is the law.
02:18:07PM 21
Because Rule 41 doesn't allow it.
It is the law.
And they have

There
Rule 41 is codified in
Sometimes we don't agree
Sometimes if you are the government you wish it
And regardless of the fact that they clearly and
02:18:12PM 22
deliberately violated Rule 41, and their explanations
02:18:17PM 23
about how Rule 41 might apply would not pass muster in a
02:18:23PM 24
1L class, the upshot is still that the warrant itself says
02:18:28PM 25
the Eastern District of Virginia, full stop.

136
02:18:33PM
And Judge Smith in his In Re warrant opinion got it
02:18:38PM
right.
02:18:43PM
and data, but it is not just a cloud.
They have a
02:18:48PM
physical location for these searches.
And all the
02:18:52PM
testimony and the government's pleadings establishes the
02:18:54PM
physical location of that data search and extraction
02:18:57PM
occurred in Washington State.
02:19:04PM
Now, your Honor, I have indicated under Sedaghaty and
02:19:07PM
the other cases the fact that the warrant was executed in
We may be talking about technology in cyberspace,
02:19:10PM 10
Washington with a -- excuse me, that the search was
02:19:13PM 11
executed in Washington with an Eastern District warrant
02:19:16PM 12
requires suppression.
02:19:20PM 13
Rule 41 violations require suppression also.
02:19:24PM 14
all of the pleadings that have come from the government,
02:19:26PM 15
not once have they talked about Weiland, which is the case
02:19:29PM 16
that we cited, which says that suppression is required for
02:19:32PM 17
a Rule 41 violation, regardless of good intentions or
02:19:35PM 18
investigatory need, or anything like that.
02:19:39PM 19
if the violation was deliberate.
02:19:45PM 20
was deliberate.
02:19:49PM 21
of Rule 41 that we cited at length to the court actually
02:19:52PM 22
tracks Weiland and the Rule 41 analysis.
02:19:57PM 23
But I am also going to say that the

Because in
It is required
We believe it clearly
DOJ's own policies and internal analysis
Now, I can appreciate that internet crime is hard to
02:20:00PM 24
investigate.
And I do not think that any of the gentlemen
02:20:05PM 25
sitting here are malicious in the sense that it has been

137
02:20:10PM
used in this courtroom.
But what I do believe is that
02:20:13PM
this was deliberate.
02:20:15PM
And regardless of whether it was deliberate, we know
02:20:17PM
that this is an issue of constitutional magnitude, which
02:20:21PM
is the other Weiland factor.
02:20:24PM
heard, we are dealing with core privacy issues and the
02:20:27PM
ability of the courts to oversee the application of
02:20:32PM
executive powers.
02:20:37PM
Because as your Honor just
And unless and until the Supreme Court changes
02:20:40PM 10
Rule 41, those are the rules.
02:20:44PM 11
there is no question the Department of Justice knows that.
02:20:47PM 12
THE COURT:
Those are the rules.
What do you make of Rule 3103a?
And
That
02:20:55PM 13
seems to open a door, but there is not, to my knowledge,
02:21:01PM 14
much law about how it applies.
02:21:03PM 15
02:21:07PM 16
MR. FIEMAN:
what 3103a was directed to, which is --
02:21:10PM 17
THE COURT:
02:21:11PM 18
MR. FIEMAN:
02:21:12PM 19
Your Honor, I think we responded to
Pardon me?
I'm sorry.
You are talking about
3103a?
02:21:14PM 20
THE COURT:
02:21:16PM 21
MR. FIEMAN:
02:21:18PM 22
mere evidence rule.
02:21:20PM 23
they could legally seize evidence, data, if they had a
02:21:25PM 24
proper warrant to do it.
02:21:32PM 25
Yeah.
Correct.
But that is addressing the
We are not disputing that they had --
Now, your Honor, I think where this is ultimately

138
02:21:38PM
going to end up --
And that Rule 41 issue, your Honor, is
02:21:41PM
entirely different from what the face of the warrant says.
02:21:44PM
That is a core Fourth Amendment principle, but the scope
02:21:48PM
of the search or the location of the search cannot exceed
02:21:52PM
the jurisdictional boundaries that appear on the face of
02:21:55PM
the warrant.
02:21:58PM
02:22:10PM
a violation of Rule 41, what should be done about it.
02:22:16PM
I know your position is that it demands suppression.
That is just hornbook Ninth Circuit law.
THE COURT:
Part of the question is, if there was

And
I
02:22:24PM 10
asked the question, what if a district judge had issued
02:22:28PM 11
this warrant instead of the magistrate judge, what
02:22:34PM 12
difference would it have made?
02:22:37PM 13
MR. FIEMAN:
Ultimately no difference, your Honor,
02:22:40PM 14
because if the district court had signed a warrant that
02:22:43PM 15
says that the location of the search is the Eastern
02:22:46PM 16
District of Pennsylvania, period, that is it.
02:22:51PM 17
decision by the judge, whether it is magistrate judge or
02:22:53PM 18
district court judge, that is the scope of the
02:22:56PM 19
authorization, that is the limits of the geographic
02:22:59PM 20
boundaries of the search.
02:23:02PM 21
from Rule 41.
02:23:03PM 22
THE COURT:
That
And that is separate and apart
So you are saying that there is no way
02:23:06PM 23
to get a warrant that would address the particular problem
02:23:10PM 24
or issue that the government faced in this case?
02:23:14PM 25
MR. FIEMAN:
First of all --
Two things, your

139
02:23:18PM
Honor:
That problem needs to be directed to the Supreme
02:23:25PM
Court and the rules committee in Congress, if and when
02:23:27PM
they decide that weighing the privacy interests --
02:23:30PM
02:23:33PM
02:23:36PM
02:23:39PM
02:23:40PM
02:23:44PM
THE COURT:
years.
So they find an answer in five or ten
Those guys don't move very fast.

MR. FIEMAN:
Meanwhile, the government needs to
respect the law as it stands.

More importantly, there are alternatives.
We have
seen plenty of, in this court alone, child pornography
02:23:50PM 10
investigations, where, for example, you have targets
02:23:56PM 11
visiting illicit websites, the undercover has engaged in
02:24:01PM 12
messages, they exchange emails, they redirect them to
02:24:06PM 13
sites in the jurisdiction where they want to get a
02:24:09PM 14
warrant.
02:24:12PM 15
We talked a little bit about spoofing.
02:24:15PM 16
someone from the homepage when they go into the site into
02:24:19PM 17
servers located anywhere that you want them to go.
02:24:22PM 18
takes more effort, that's true.
02:24:26PM 19
right and legally does take more effort.
02:24:30PM 20
not without investigatory alternatives.
02:24:33PM 21
What they could have done, for example, is -You can redirect
It
Sometimes doing things

But they were
And here, ultimately, your Honor, even if they were,
02:24:37PM 22
which just simply is not the case, the investigatory ends
02:24:43PM 23
cannot justify illegal means.
02:24:48PM 24
sense that they didn't follow what was on the face of the
02:24:51PM 25
warrant, they didn't follow Rule 41, I believe they were
And I mean "illegal" in the

140
02:24:55PM
not candid with Judge Buchanan, and all the things that we
02:24:59PM
have probably briefed to death, your Honor.
02:25:02PM
02:25:09PM
old-fashioned, simple way to resolve a complicated case,
02:25:13PM
because we know you have to go by what the warrant says.
02:25:21PM
02:25:23PM
Please bear in mind this is a situation of their own
02:25:26PM
making.
02:25:31PM
that said United States of America -- person or property
Now, in some ways this seems like a somewhat
Hopefully if the court rules against the government --
Why didn't they get a warrant from Judge Buchanan
02:25:34PM 10
located in the United States of America, persons and
02:25:36PM 11
property -- like they did in the other case before Judge
02:25:40PM 12
Smith's decision, and they knew they had a problem, that
02:25:42PM 13
say Eastern District of Virginia and elsewhere?
02:25:47PM 14
something they should have tried for, that they could have
02:25:51PM 15
tried for.
02:25:55PM 16
and appropriate, we would probably be arguing a separate
02:25:58PM 17
set of issues.
02:26:02PM 18
laid out why.
02:26:04PM 19
And if Judge Buchanan thought that was legal
They didn't do that.
but their means were unconstitutional.
02:26:15PM 21
Honor.
02:26:25PM 23
02:38:50PM 24
02:38:50PM 25
And I think we have
Their investigatory ends may have been justifiable,
02:26:10PM 20
02:26:21PM 22
That is
THE COURT:
Mr. Becker.
Thank you, your
Let's take ten so I don't
interrupt you.
(Break.)
THE COURT:
Mr. Becker.

141
02:38:52PM
MR. BECKER:
Appreciate
02:38:54PM
the recess.
02:39:01PM
picture from our perspective, which is that in this
02:39:06PM
investigation law enforcement identified and recognized a
02:39:11PM
serious problem of illegal activity occurring in a way
02:39:17PM
that was technically advanced that required action.
02:39:26PM
in the course of pursuing that investigation, and
02:39:30PM
obtaining process in order to obtain evidence, went to the
02:39:35PM
courts and sought authorization to use lawful techniques
Your Honor, I will start with the broader
And
02:39:40PM 10
and court-authorized techniques to counter the sort of
02:39:43PM 11
challenge they faced from criminals committing crimes and
02:39:47PM 12
exploiting children using an advanced technology.
02:39:51PM 13
the problem that law enforcement faced in this case.
02:39:54PM 14
I think that is the light in which the court should view
02:39:57PM 15
the various issues in this case, because that's what is at
02:40:01PM 16
issue.
02:40:01PM 17
This is a criminal case.
That is
And
It is a child pornography
02:40:03PM 18
case.
02:40:08PM 19
engaging in the trafficking of child pornography.
02:40:10PM 20
that is what it is about, it is about criminal
02:40:14PM 21
enforcement, and the tools that law enforcement uses in
02:40:18PM 22
order to counter the tools that criminals use.
02:40:20PM 23
the context we are in.
02:40:22PM 24
02:40:26PM 25
It pertains to a website on which users were
I will start with the Rule 41 issue.
And
That is
Undoubtedly --
You know, we disagree in terms of the defense's read of

142
02:40:30PM
Rule 41.
We have set that forth in our papers.
I won't
02:40:34PM
belabor that issue.
02:40:35PM
02:40:39PM
is to be interpreted flexibly.
02:40:42PM
be interpreted to allow the sort of search that the
02:40:45PM
magistrate authorized in this case.
02:40:49PM
02:40:52PM
focus on the question of whether or not --
02:40:55PM
believe it is necessary for the court to decide that
The Supreme Court has said very clearly that Rule 41

We do believe that it can
But we think it makes more sense for the court to

And we don't
02:40:57PM 10
particular issue, because we do believe it is absolutely
02:41:00PM 11
clear that suppression for a violation or purported
02:41:04PM 12
violation of Rule 41 in this case is not warranted for a
02:41:10PM 13
number of reasons.
02:41:11PM 14
So suppression, according to the Ninth Circuit, would
02:41:15PM 15
be warranted generally only for a fundamental violation,
02:41:18PM 16
that is, a violation of constitutional magnitude.
02:41:22PM 17
that is not what happened in this case, because the
02:41:25PM 18
pillars of the Fourth Amendment were complied with by law
02:41:32PM 19
enforcement.
02:41:32PM 20
And
The FBI requested and obtained a warrant from a
02:41:35PM 21
neutral and detached magistrate based on a finding of
02:41:38PM 22
probable cause, certainly from our perspective a strong
02:41:41PM 23
showing of probable cause, that obviously the magistrate
02:41:44PM 24
judge agreed with in authorizing the warrant.
02:41:47PM 25
The other pillars of the Fourth Amendment were

143
02:41:50PM
complied with, that is, probable cause particularly
02:41:56PM
describing the information to be seized.
02:42:00PM
particularity requirement is met here.
02:42:04PM
clear from the warrant exactly what information law
02:42:06PM
enforcement may collect and did collect pursuant to the
02:42:09PM
warrant itself.
02:42:09PM
02:42:12PM
based on an argument there was a fundamental or
02:42:15PM
constitutional violation in this context, where law
02:42:18PM 10
enforcement goes to a court for authorization to do
02:42:20PM 11
exactly what it is asking for authorization to do, that
02:42:23PM 12
authorization is granted, the warrant describes -- meets
02:42:26PM 13
the particularity requirement.
02:42:29PM 14
clear and really spelled out exactly what this warrant is
02:42:32PM 15
designed to collect.
02:42:34PM 16
The
It is absolutely
We think it is clear there is no basis for suppression
That is obviously very
Without that being a fundamental violation, a mere
02:42:42PM 17
technical violation of Rule 41 would properly result in
02:42:45PM 18
suppression only where the defendant can establish
02:42:48PM 19
prejudice or intentional and deliberate disregard, a
02:42:51PM 20
violation of the rule.
02:42:52PM 21
I will start with the intentional or deliberate
02:42:55PM 22
violation.
There is simply no evidence of that in this
02:42:58PM 23
case.
02:43:01PM 24
said that a magistrate authorizing this sort of search
02:43:06PM 25
would be or is a violation of Rule 41.
There is no controlling law that was out there that
There is one

144
02:43:10PM
magistrate's opinion that exists, from a magistrate who --
02:43:17PM
law enforcement applied for that warrant, and the
02:43:18PM
magistrate rejected it.
02:43:21PM
scenario.
02:43:24PM
applies for a search warrant.
02:43:25PM
02:43:29PM
enforcement goes, in a different scenario, regarding a
02:43:32PM
different investigative technique, to a different
02:43:34PM
magistrate in a different investigation, and requests
That could happen in any
That could happen every time law enforcement
That doesn't indicate --
Certainly if and when law
02:43:36PM 10
authority for that particular investigative technique,
02:43:39PM 11
that just because some magistrate elsewhere in a different
02:43:43PM 12
case had rejected a warrant, that by requesting that
02:43:46PM 13
authority for something different, if arguably similar,
02:43:49PM 14
makes it an intentional or deliberate violation of the
02:43:52PM 15
rule, particularly in light of the fact, as this court is
02:43:56PM 16
aware, and is clearly noted in this record, other
02:43:58PM 17
magistrate judges have approved network investigative
02:44:01PM 18
techniques in similar scenarios to this one.
02:44:04PM 19
And so among that landscape, where you have a
02:44:07PM 20
magistrate who has rejected a warrant, arguably similar, a
02:44:11PM 21
number of magistrates who have approved warrants arguably
02:44:15PM 22
similar, I think it is impossible to say that law
02:44:17PM 23
enforcement is acting with a deliberate disregard of the
02:44:19PM 24
rule by presenting the facts in the investigation to a
02:44:22PM 25
neutral and detached magistrate who decides there is

145
02:44:24PM
02:44:28PM
02:44:33PM
prejudice, and that is the prejudice in that if the rule
02:44:37PM
had been followed, the search would not have occurred.
02:44:42PM
02:44:46PM
his prejudice argument is that no court ever, anywhere,
02:44:49PM
could ever authorize a search of Mr. Michaud's computer,
02:44:53PM
or any of the users of this particular website, purely
02:44:57PM
because they decided to use the Tor network, and therefore
02:44:59PM 10
that makes them immune to any court-authorizing process in
02:45:03PM 11
order to take steps to identify their location; that
02:45:07PM 12
because their location is unknown at the time, no court
02:45:12PM 13
may authorize investigative steps in order to identify
02:45:15PM 14
them.
02:45:19PM 15
account, not the sort of prejudice that is called for and
02:45:21PM 16
certainly focused on in the law talking about prejudice in
02:45:26PM 17
terms of a technical error.
02:45:28PM 18
probable cause and this warrant should issue.

The other side of the technical violation would be
And here, the defendant's argument falls flat, because
That is not the sort of prejudice this court should
There are cases where at a time where the location of
02:45:32PM 19
the search is known, so either the object of the search
02:45:36PM 20
was a house in a known location, a car in a known
02:45:40PM 21
location, that was outside of the magistrate's district,
02:45:42PM 22
that prejudice has been found.
02:45:45PM 23
In this case the location of the user is unknown, and the
02:45:50PM 24
technique is being applied for and requested precisely in
02:45:53PM 25
order to find information that will help locate that user,
But that's not this case.

146
02:45:58PM
the information about it.
So a very, very different
02:46:00PM
context here.
02:46:01PM
02:46:05PM
suppression argument fails, because law enforcement acted
02:46:08PM
reasonably in account of all of the circumstances of the
02:46:12PM
investigation, by going to a magistrate, articulating
02:46:18PM
probable cause, and articulating what would happen to the
02:46:22PM
warrant and whose computers would be searched.
02:46:24PM
And so, ultimately, your Honor, we think the
We don't agree certainly with the defense's argument
02:46:27PM 10
that somehow the magistrate was misled, or did not or
02:46:30PM 11
would not have understood that the request was to search
02:46:34PM 12
computers that accessed this website wherever they were
02:46:37PM 13
located.
02:46:39PM 14
specifically says, on Page 29, "It is respectfully
02:46:46PM 15
requested that the court issue a search warrant
02:46:49PM 16
authorizing the following:
02:46:53PM 17
computer, wherever located, to send to a computer
02:46:55PM 18
controlled to or known by the government," and then it
02:46:58PM 19
goes through the sort of information that it is requesting
02:47:02PM 20
to be delivered.
02:47:02PM 21
That is because the warrant affidavit
The NIT may cause an active
In light of that, as well as the warrant application
02:47:05PM 22
as a whole, makes it unmistakably clear that the purpose
02:47:09PM 23
of the warrant and the technique is to identify the
02:47:12PM 24
locations of users' computers who are then -- whose
02:47:16PM 25
location is at that time unknown.

147
02:47:19PM
02:47:21PM
application that could show the magistrate was misled
02:47:26PM
about the purpose of the warrant, or the fact that it was
02:47:29PM
requesting authority to be deployed to computers, wherever
02:47:35PM
they were located.
02:47:37PM
02:47:40PM
just sort of -- in his argument that it was cabined into
02:47:46PM
computers only in the Eastern District of Virginia, the
02:47:49PM
defendant really reads out the warrant attachment.
02:47:53PM 10
So I don't think there is any fair read of this
It is right there in the application.
Now, in terms of the warrant itself, the defendant
And that is, Attachment A of the warrant, incorporated
02:47:57PM 11
into the warrant, makes it clear that the activating
02:47:59PM 12
computers are those of any user or administrator who logs
02:48:03PM 13
into the target website by entering a user name and
02:48:06PM 14
password.
02:48:11PM 15
located only in the Eastern District of Virginia.
02:48:14PM 16
warrant clearly requested authority to deploy to computers
02:48:17PM 17
wherever located.
02:48:18PM 18
It does not say any user or administrator

The
And I don't believe, again, it is a fair read of the
02:48:20PM 19
attachment to say -- particularly where it specifies that
02:48:24PM 20
the server is located in the Eastern District of Virginia,
02:48:28PM 21
and then authorizes on activated computers of any user or
02:48:35PM 22
administrator who logs into the target site, that that is
02:48:40PM 23
somehow cabined in, or that that was the intent of the
02:48:41PM 24
magistrate in authorizing it.
02:48:43PM 25
The application makes unmistakably clear what sort of

148
02:48:45PM
authority the government was requesting.
02:48:47PM
authority that the magistrate -- certainly we would argue
02:48:50PM
that the magistrate was granting in approving of this
02:48:54PM
warrant, as she did.
02:48:58PM
02:49:05PM
location of the search.
02:49:09PM
context, which we think is clear, where there are two-way
02:49:13PM
communications going on between users and a computer
02:49:16PM
server.
02:49:17PM 10
In terms of --
And that is the
Your Honor had a question about the

Here, we are dealing in a
But there is no question that at the time the NIT is
02:49:20PM 11
authorized, at the time the NIT is deployed, the computer
02:49:22PM 12
server onto which that NIT code is deployed is in the
02:49:26PM 13
Eastern District of Virginia.
02:49:29PM 14
activating computers, the users, are communicating with
02:49:32PM 15
the Eastern District of Virginia when they access that
02:49:36PM 16
website, that two-way communication that is going on.
02:49:39PM 17
information that is collected by the NIT is returned to a
02:49:42PM 18
computer in the Eastern District of Virginia.
02:49:45PM 19
The computers of -- the
The
And so in requesting this authority, and with the
02:49:49PM 20
warrant being authorized, law enforcement is going to the
02:49:52PM 21
district that has the closest, strongest connection to all
02:49:55PM 22
of the communications that are pertinent.
02:49:59PM 23
deals with users who are making a voluntary choice to step
02:50:02PM 24
into the Eastern District of Virginia and access that
02:50:05PM 25
website.
The warrant
And that's where they get that code.

149
02:50:08PM
It is certainly true that the code then goes to that
02:50:11PM
user's computer, as described in the warrant, and then
02:50:15PM
returns -- has to go to that user's computer, wherever
02:50:18PM
located, in this situation it was here in Washington, and
02:50:22PM
then return the information back to the Eastern District
02:50:24PM
of Virginia.
02:50:26PM
I don't think it is a fair analysis, though, to say
02:50:29PM
that means the search occurred only in Washington, because
02:50:33PM
that -- it reads out -- that sort of analysis would have
02:50:36PM 10
to read out this two-way factor sort of communication that
02:50:41PM 11
is going on, and the fact that the user is entering the
02:50:45PM 12
Eastern District of Virginia when the communications are
02:50:47PM 13
taking place.
02:50:49PM 14
The other aspect, your Honor, that we would ask you to
02:50:52PM 15
consider is certainly the good-faith argument here.
02:50:55PM 16
that is that law enforcement in this case acted in
02:50:58PM 17
objectively reasonable reliance upon the authorization of
02:51:02PM 18
a magistrate, who found probable cause, who found
02:51:07PM 19
particularity, who authorized the particular technique
02:51:10PM 20
that law enforcement applied for.
02:51:12PM 21
And
This is not a scenario where law enforcement was
02:51:15PM 22
granted a warrant and then took some action in the
02:51:18PM 23
execution that was somehow different than what they
02:51:21PM 24
applied for, or outside of what they applied for, which
02:51:24PM 25
might justify suppression, such as a case where law

150
02:51:29PM
enforcement, which is -- when they are required to leave a
02:51:31PM
copy of a warrant in a premises, deliberately decides not
02:51:34PM
to do so, and not with any authority from the court.
02:51:38PM
02:51:44PM
articulated requests to the magistrate, and that is the
02:51:46PM
website operates in the Eastern District of Virginia, the
02:51:49PM
NIT gets deployed to the activated computers wherever
02:51:54PM
located, and returns information to the Eastern District
02:51:55PM
of Virginia.
Here, law enforcement acted expressly within their
Law enforcement relied in good faith on that
02:51:59PM 10
authorization.
02:52:03PM 11
Honor, why suppression is inappropriate in this scenario.
02:52:08PM 12
And so that's a further reason, your
The one other issue that we would present to the
02:52:15PM 13
court, if I may tender it, just today --
02:52:18PM 14
this earlier.
02:52:20PM 15
02:52:28PM 16
May I approach?
THE COURT:
this on my desk.
02:52:36PM 17
And I referenced
Yes.
I think somebody put a copy of
I already have a copy of it.
MR. BECKER:
Just today, your Honor, a report and
02:52:38PM 18
recommendation was filed in the case of United States
02:52:39PM 19
versus Epic.
02:52:49PM 20
No. 53.
02:52:54PM 21
technique warrant, as in this case, was challenged on a
02:52:57PM 22
motion to suppress.
02:53:01PM 23
challenge, as well as a probable cause challenge to the
02:53:04PM 24
warrant.
02:53:07PM 25
judge, finding sufficient probable cause to support the
It is 15 -- for the record, 15CR163, Docket
In that case the same network investigative
That defendant raised a Rule 41
That magistrate has reported to the district

151
02:53:11PM
issuance of the warrant, declining to ultimately rule on
02:53:14PM
the Rule 41 issue, but finding, nonetheless, suppression
02:53:17PM
was inappropriate in this scenario.
02:53:22PM
we would propose your Honor rule.
02:53:24PM
02:53:28PM
but that ultimately it is not necessary, that law
02:53:32PM
enforcement acted reasonably here, and that suppression is
02:53:35PM
not warranted.
02:53:37PM
the defendant's motions to suppress.
And so that is what
We think, again, we have made our Rule 41 argument,
02:53:40PM 10
So we would request that your Honor deny
THE COURT:
Thank you.
Let me ask you a couple of questions.
02:53:42PM 11
One of the things I commented on was, what does 3103a mean
02:53:53PM 12
in light of this role argument?
02:53:56PM 13
MR. BECKER:
We have reviewed it, your Honor.
We
02:53:58PM 14
don't believe, and wouldn't make the argument, that that
02:54:01PM 15
would provide sort of an independent basis from Rule 41 in
02:54:07PM 16
order for a district court or a magistrate judge to
02:54:10PM 17
authorize the warrant.
02:54:14PM 18
it, it was a more sort of discrete purpose.
02:54:19PM 19
the defense is necessarily --
02:54:21PM 20
correct in terms of the purpose of the amendment to that
02:54:23PM 21
statute.
02:54:27PM 22
the court's analysis here.
02:54:30PM 23
THE COURT:
02:54:35PM 24
02:54:38PM 25
I think, having briefly researched

I don't think
I think the defense may be
And so we are not arguing that that would impact
What difference would it make if a
district judge had issued this warrant?

MR. BECKER:
While we think it is something the

152
02:54:40PM
court can consider, in terms of the reasonableness of law
02:54:43PM
enforcement's actions, that a district judge did approve a
02:54:46PM
wiretap in this case, which allowed for the collection of
02:54:50PM
a much greater set of evidence, that is, the ongoing
02:54:54PM
collection of content, which a district judge found
02:54:57PM
appropriate, and that the court consider that in terms of
02:55:01PM
the overall reasonableness of the government's conduct, we
02:55:03PM
don't think it would make a difference -- we wouldn't
02:55:06PM
argue it makes a difference in terms of a Rule 41 analysis
02:55:09PM 10
if a district judge had authorized the search.
02:55:17PM 11
THE COURT:
Let me ask you one other question.
If
02:55:34PM 12
a good warrant is issued for material in the state of
02:55:49PM 13
Washington, and the search turns up information of a crime
02:55:54PM 14
in an adjoining state --
02:56:03PM 15
to begin with, but very often drug dealers keep records,
02:56:08PM 16
and so forth.
02:56:14PM 17
in another state.
02:56:18PM 18
going after a criminal in the adjoining state, are you
02:56:22PM 19
not?
02:56:22PM 20
That's not what you went after
So you have information then about a crime
MR. BECKER:
You are free to use that information
We believe that to be true, your
02:56:26PM 21
Honor.
It is sort of a plain-view type argument that we
02:56:32PM 22
do think could be justified here.
02:56:36PM 23
defense view only searches of computers in EDVA were
02:56:42PM 24
authorized, but during the course of that authorized
02:56:45PM 25
conduct that they would, I gather, concede it was
And so if under the

153
02:56:48PM
appropriate, at least for EDVA computers, information
02:56:52PM
pertaining to criminal acts and criminal evidence of other
02:56:56PM
computers was observed by law enforcement in plain view, I
02:57:01PM
do think that would be -- could be a reason that law
02:57:05PM
enforcement would be able to use that evidence in a
02:57:07PM
criminal prosecution, and it would not necessarily be
02:57:10PM
suppressible.
02:57:36PM
that there, your Honor.
02:57:37PM
I have a brief note on that.
I will leave
The last point I would make -- the one thing we
02:57:40PM 10
haven't discussed in terms of the reasonableness, and kind
02:57:43PM 11
of bringing this back to the evidence, is that the IP
02:57:48PM 12
address information is really different in quality than
02:57:51PM 13
the MAC address information, in that IP address
02:57:55PM 14
information, this circuit, other circuits, have
02:57:58PM 15
consistently found not to be something over which a user
02:58:02PM 16
has a reasonable expectation of privacy.
02:58:05PM 17
address information that ultimately furnishes the probable
02:58:09PM 18
cause in order to ultimately have a residential search
02:58:11PM 19
warrant granted, and for the evidence that ultimately was
02:58:15PM 20
found on Mr. Michaud's devices to be seized.
02:58:19PM 21
It is the IP
So here, when we are talking about the fundamental
02:58:24PM 22
violation issue, the reasonableness issue, we do think the
02:58:27PM 23
court is right to consider the limited scope of the search
02:58:30PM 24
that was authorized and conducted in this case.
02:58:33PM 25
This wasn't a full-blown search of everything in

154
02:58:36PM
someone's home, or even everything on someone's computer.
02:58:40PM
This is a search that delivered information that was
02:58:43PM
limited, that was targeted, and with respect to the IP
02:58:46PM
address information, that users do not have a reasonable
02:58:49PM
expectation of privacy over.
02:58:53PM
over Tor, that doesn't change the nature of the
02:58:56PM
communication, or that IP address information, which
02:59:00PM
belongs to an internet service provider, not to any
02:59:02PM
individual.
02:59:04PM 10
And even while communicating
And so we do think that is a factor, as the court
02:59:09PM 11
hones in on what is really the piece of evidence that
02:59:12PM 12
matters in terms of going forward, it is that IP address
02:59:15PM 13
information.
02:59:18PM 14
conducted here contributed to its reasonableness.
02:59:26PM 15
02:59:28PM 16
Again, a limited, focused search that was
If the court has no further questions, thank you, your

Honor.
02:59:29PM 17
THE COURT:
02:59:37PM 18
MR. FIEMAN:
19
02:59:38PM 20
Thank you, Mr. Becker.

Your Honor, since I have the burden,
can I have a couple of minutes to respond?

Let me knock out a couple of simple points that
02:59:41PM 21
Mr. Becker said, and then get back to the crux of this.
02:59:44PM 22
The privacy interest is not the IP address.
02:59:48PM 23
interest is Mr. Michaud's home.
02:59:51PM 24
have a telephone number, and the government can't tell
02:59:56PM 25
where you are calling from because you have caller ID
The privacy
It is like saying you

155
02:59:59PM
blocking, well, then it is just fine to go into somebody's
03:00:03PM
house and take their address book.
03:00:05PM
03:00:08PM
quantity of information or evidence seized is irrelevant
03:00:10PM
for Fourth Amendment purposes.
03:00:14PM
privacy interest, and this was shared with the service
03:00:17PM
provider, they could have gone to Comcast and asked for
03:00:20PM
it.
03:00:23PM
We have cited several times that the quality or
And if there was no
But they couldn't and they didn't.

The question then is whether this intrusion on
03:00:26PM 10
Mr. Michaud's home, whether it is for a matchbook or kilos
03:00:30PM 11
of drugs, doesn't matter.
03:00:33PM 12
information that is taken, that is protected by the Fourth
03:00:36PM 13
Amendment.
03:00:40PM 14
It is the intrusion, not the
So that, we firmly believe, is a red herring.
Your Honor, I think Mr. Becker interpreted this
03:00:43PM 15
question as helpful to the government in terms of if, for
03:00:47PM 16
example, in the course of operating the Virginia website
03:00:50PM 17
there was information in plain view or had been turned up
03:00:55PM 18
in the course of operating that site, that would have led
03:00:58PM 19
them to believe they could conduct a search in another
03:01:01PM 20
jurisdiction.
03:01:02PM 21
Well, two things would have happened.
Let me point
03:01:05PM 22
out two things.
One is, they did not get the information
03:01:08PM 23
and data from the Virginia server.
03:01:11PM 24
contested at this point that the data extraction, the
03:01:16PM 25
search, occurred in Washington.
They have not
That is true.

156
03:01:17PM
If they had gone back through their server records and
03:01:19PM
found an IP address associated with Pewter, or anybody, in
03:01:23PM
the course of exercising that Virginia warrant, and then
03:01:27PM
took that information, went to Comcast, said we now know
03:01:31PM
this is a Washington address, and then came to this court
03:01:34PM
and asked for a warrant, that is the way it is supposed to
03:01:36PM
work.
03:01:38PM
03:01:41PM
So this is not a plain-view situation, because they

never saw it in Virginia.
They had to search
03:01:44PM 10
Mr. Michaud's home to find it.
03:01:46PM 11
if I drive my car into Virginia, you can search my
03:01:49PM 12
Washington home, if that is the only connection.
03:01:51PM 13
It is a little like saying
Your Honor, let me also say that the Title III
03:01:55PM 14
authorization specifically said that the NIT warrant
03:02:00PM 15
application was going to be separate.
03:02:03PM 16
Title III case, because it doesn't deal with those
03:02:05PM 17
communications.
03:02:06PM 18
03:02:11PM 19
03:02:14PM 20
This isn't a
The Epic decision only addressed probable cause, did

not reach the issues that we briefed here.
Let me talk briefly about the probable cause issue.
03:02:18PM 21
We have, according to the government, a warrant that
03:02:20PM 22
authorizes up to 100,000 searches, because that is the
03:02:24PM 23
number of account users that accessed while the FBI was
03:02:27PM 24
operating this site.
03:02:29PM 25
It is a site, your Honor, that does not, even

157
03:02:31PM
according to the criteria that we have seen from Gourde
03:02:35PM
and the other cases, unabashedly announce it is illegal.
03:02:39PM
03:02:40PM
times.
03:02:45PM
correct way for it to face for your Honor?
03:02:48PM
about something that has a teenager who is -- I have seen
03:02:54PM
in my daughter's Sixteen magazine much more skin or
03:02:59PM
provocation.
03:03:02PM
is no reference to child pornography.
I will put this back up.
The court has seen it many
What we are talking about is --
Is that the
We are talking
It advertises itself as a chat room.
There
There is no
03:03:07PM 10
indication that this is anything more than a fetish site
03:03:12PM 11
or chat room.
03:03:15PM 12
qualify as lascivious pornography on it.
03:03:20PM 13
It doesn't even have what arguably would
As your Honor has recognized in other cases, the scope
03:03:22PM 14
of the search has to be firmly grounded in the probable
03:03:26PM 15
cause -- the extent to which probable cause is
03:03:31PM 16
established.
03:03:32PM 17
Now, this would be a close call if we were dealing
03:03:35PM 18
with one search.
03:03:39PM 19
cases.
03:03:44PM 20
bright line, because of the inability often to segregate
03:03:50PM 21
legal, if maybe distasteful, activities that are protected
03:03:54PM 22
from things that clearly establish an illicit illegal
03:03:59PM 23
intent.
03:04:00PM 24
03:04:03PM 25
I argued the Gourde case, and the Martin
And that's why the court created something of a
This warrant authorized the deployment of 100,000

searches anywhere in the world based upon what is on that

158
03:04:06PM
web page.
That is a pretty slim read on which to hang
03:04:11PM
such an unprecedented sweeping authorization.
03:04:17PM
03:04:20PM
can look at the attachments, and there is not one word,
03:04:24PM
not one word, about this warrant being executed outside
03:04:28PM
the Eastern District of Virginia.
03:04:33PM
the government did in 2012, where they submitted a warrant
03:04:38PM
that indicates that the searches -- the deployment of a
03:04:42PM
NIT in this Texas slayer case -- actually, the defendant
Now, your Honor, in terms of that authorization, you
And just compare what
03:04:46PM 10
has not been apprehended, but they got a warrant, clearly
03:04:49PM 11
states that the NIT will be deployed in Colorado and
03:04:52PM 12
elsewhere.
03:04:57PM 13
apprehended, there may be good Rule 41 issues.
03:05:00PM 14
not at the Rule 41 issues.
03:05:02PM 15
Now, if that particular defendant is ever

But we are
What they have here, by their own submission, is a
03:05:07PM 16
warrant that says Eastern District of Virginia, period.
03:05:13PM 17
They drafted that.
03:05:20PM 18
Buchanan.
03:05:22PM 19
That's what they presented to Judge
And even if they are now hung on the horns of their
03:05:25PM 20
own dilemma, your Honor, the law is clear, the search
03:05:30PM 21
warrant controls.
03:05:35PM 22
authorized scope of the warrant or location authorized,
03:05:40PM 23
then suppression is mandated.
03:05:43PM 24
03:05:48PM 25
And if the search occurs outside the
Good faith is irrelevant.
So if I get a warrant that says I am going to search

2304 Elm Drive, and I decide I am going to search 1606

159
03:05:56PM
Apple Lane, and 1405 President Street, it doesn't matter
03:06:04PM
what you intended, it is an illegal search.
03:06:10PM
03:06:13PM
warrant they drafted, and there is nothing in the
03:06:15PM
attachment that changes it.
03:06:16PM
03:06:20PM
They can resubmit the warrants in future investigations
03:06:25PM
that candidly say that they are United States in scope.
03:06:27PM
They can pursue the rule changes, which would be decided
03:06:30PM 10
03:06:31PM 11
It only bears repeating, your Honor, that this is the
And they have some choices.
They have some options.
by the end of this year.

Even if Rule 41 changes, they still need to put on the
03:06:35PM 12
face of the warrant, regardless of the rule, the locations
03:06:37PM 13
where they are searching.
03:06:41PM 14
Your Honor, to come back to this, we are dealing in
03:06:46PM 15
some ways with new territory.
03:06:49PM 16
principles and guidelines are well established.
03:06:53PM 17
exactly the kind of governmental overreaching, or the
03:06:58PM 18
ability to conduct seemingly endless searches on the basis
03:07:04PM 19
of a single authorization, that drove a lot of what the
03:07:07PM 20
founders were concerned about with general warrants.
03:07:11PM 21
does require care, candor, and specificity in order to get
03:07:15PM 22
a valid warrant that is as sweeping as this one.
03:07:19PM 23
But the Fourth Amendment

It is
It
Your Honor, however this ultimately rules out -- maybe
03:07:25PM 24
it is a matter of this case going up alongside Essick, and
03:07:29PM 25
it may ultimately be a decision for the Supreme Court, but

160
03:07:33PM
unless we are going to not only -- just forget about 41,
03:07:36PM
ignore what is on the face of the warrant, and disregard
03:07:39PM
the constitutional guidelines that really are the core
03:07:42PM
issue in this case, suppression is not only the
03:07:47PM
appropriate and necessary remedy, it is something that is
03:07:51PM
desperately needed, so that these issues can be resolved
03:07:55PM
in a way that protects core privacy interests in the face
03:07:59PM
of such sweeping governmental authority.
03:08:05PM
I respectfully disagree with Mr. Becker about the
03:08:08PM 10
investigatory alternatives that are available.
03:08:10PM 11
respectfully disagree with him about their intentions in
03:08:14PM 12
presenting this warrant to Judge Buchanan.
03:08:19PM 13
that he is a law enforcement officer with good intentions
03:08:23PM 14
personally, all of which is irrelevant.
03:08:28PM 15
what it says.
03:08:29PM 16
I do respect
The warrant says
And when we have all of this background, and the scale
03:08:32PM 17
of such an unprecedented search, and such paucity of PC to
03:08:37PM 18
begin with on the face of this homepage, your Honor, it
03:08:41PM 19
seems to me that suppression is not only appropriate but
03:08:45PM 20
required in every view of the law that we have presented
03:08:49PM 21
to the court.
03:08:50PM 22
Thank you.
THE COURT:
Thank you.
Well, you know, I have
03:08:56PM 23
been at this a long time, 45-plus years.
I have issued, I
03:09:07PM 24
don't know, probably hundreds of search warrants.
03:09:11PM 25
ruled on suppression motions hundreds of times, I suppose,

I have
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03:09:15PM
over that period.
This is likely the most complex one
03:09:19PM
yet.
03:09:27PM
that were in my mind.
03:09:36PM
brief again, the warrant applications, and the warrants
03:09:40PM
and put this together.
03:09:46PM
03:09:51PM
this is on top of the pile, and I should be able to get
03:09:54PM
you an answer by the middle of the week next week, either
03:10:02PM
in writing or, if I choose to do it orally, if you are not
The hearing today has clarified a number of things

But I've got to read your prolix
I've got no hearings or trials for the next week, so
03:10:05PM 10
in town we can do it on the telephone.
03:10:09PM 11
orally when I can.
03:10:18PM 12
let you know as soon as I can, and we will get you an
03:10:22PM 13
answer.
14
I typically rule
I am not ready to rule yet.
Thank you.
(Proceedings adjourned.)
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I will
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C E R T I F I C A T E
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I, Barry Fanning, Official Court Reporter for the
United States District Court, Western District of
Washington, certify that the foregoing is a true and
correct transcript from the record of proceedings in the
above-entitled matter.
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_________________
/s/ Barry Fanning
Barry Fanning, Court Reporter
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Michaud/Playpen Hearing Transcript

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1

UNITED STATES DISTRICT COURT

BEFORE THE HONORABLE ROBERT J. BRYAN

January 22, 2016

Barry L. Fanning, RMR, CRR - Official Court Reporter

Cause No. 15-5351, United States versus Jay Michaud, who

is present in court with his attorneys, Mr. Fieman and

For the government, Mr. Becker.

I put out a little

agenda for this proceeding.

is arraignment on the superseding indictment.

proceed with that first.

Mr. Michaud, have you received a copy of the

The first thing on the agenda

I have seen it, your Honor.

And you have had a chance to read that

and discuss it with your lawyers?

Yes, your Honor.

I think in prior proceedings we have

determined that your name is Jay Michaud, as it appears in

the caption of these documents; is that correct?

Yes, your Honor.

I think we also determined that you

can read and write English with no difficulty, and have

Barry L. Fanning, RMR, CRR - Official Court Reporter

considerable secondary education, right?

right to remain silent, and are not required to make any

statements about these matters?

persons of Mr. Fieman and Ms. Sullivan.

Yes, your Honor.

And you understand that you have the

I do, your Honor.

You also understand that you have the

conferred with them about this matter, the superseding

Yes, your Honor.

And you understand that this

indictment supersedes and takes the place of the original

indictment filed in the case?

Do you understand that?

I do now, your Honor.

Now, you have the right to have the

indictment read to you here in open court to be sure that

you understand it.

Do you wish to have the indictment

No, your Honor.

I believe the first two counts are the

same as in the original indictment; is that correct?

That's correct, your Honor.

You were advised of the penalties

Barry L. Fanning, RMR, CRR - Official Court Reporter

possible in the event of conviction of those two charges?

Count 3, and is a new charge, what is the maximum penalty

that Mr. Michaud is facing for that charge?

minimum term of imprisonment of five years, and up to 20

years of imprisonment; a term of supervision following

release from prison of not less than five years, and up to

Yes, your Honor.

As to the third charge, which is

Your Honor, the defendant faces a