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USA v. Vortman

United States District Court, N.D. California

April 26, 2017

USA, Plaintiff,
v.
GEORGE VORTMAN, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO COMPEL DISCOVERY

          THELTON E. HENDERSON United States District Judge

         On February 16, 2017, Defendant Vortman (“Vortman”) filed a Motion to Compel Discovery. ECF No. 80. The Government timely opposed the motion, ECF No. 83, and Vortman timely replied, ECF No. 88. The Court heard oral arguments on Vortman's motion on April 24, 2017. After carefully considering the parties' written and oral arguments, the Court DENIES Vortman's motion for the reasons set forth below.

         I. BACKGROUND

         As the parties are familiar with the factual and procedural background of this case, the Court provides only a brief summary of the facts.

         Vortman was charged following an investigation into a website hosting child pornography called “Playpen.” Unlike traditional websites, Playpen operated as a “hidden service” on The Onion Router (“Tor”). Because Playpen was hosted on Tor, Playpen's investigation posed unusual problems for law enforcement officials' attempts to identify and locate Playpen's server and Playpen users. This is because websites hosted on Tor are not indexed - i.e., they cannot easily be searched on a browser like Google - nor can the IP address of hidden services be looked up. Also, individuals cannot access websites on Tor without using the Tor browser, which conceals a Tor user's Internet Protocol address (“IP address”).[1]

         With a tip from a foreign law enforcement agency, the FBI located Playpen's host server in North Carolina. However, because Playpen's IP address log contained only the exit nodes of its users, the Government was unable to identify Playpen users. Although the Government considered immediately shutting down the website permanently, instead, the Government obtained a warrant to allow it to run Playpen from its server for thirty days and to “augment” Playpen's website with a Network Investigative Technique (“NIT”). In short, the NIT would work as follows: when a Tor user would log into Playpen using a username and password, the website would send a code, or computer instructions, to the user's computer that would cause the computer to surreptitiously send identifying information to the Government. The information that the NIT would send to the Government included an IP address, which allowed law enforcement agencies to identify the user using traditional methods.

         Using information provided by the NIT, the FBI found someone had registered an account with Playpen on January 3, 2015 using the username “childpornstar.” Further investigation revealed that “childpornstar” had accessed several online forums containing child pornography. Using the IP address revealed for “childpornstar” by the NIT, the FBI traced the pseudonym to Vortman. In August 2015, law enforcement agencies obtained a search warrant to search Vortman's residence. A search of Vortman's residence discovered over 1, 000 images and over 150 videos of child pornography on Vortman's desktop computer. On May 17, 2016, Vortman was indicted on one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2).

         In August 2016, Vortman filed a motion to dismiss his indictment for outrageous government behavior and a motion to suppress the NIT warrant. See ECF Nos. 54-55. After reviewing the parties' briefs and holding oral argument, the Court denied both motions. See ECF No. 75.

         Defendant has now filed a motion to compel “to support renewed motions to suppress and to dismiss for outrageous government misconduct.” Mot. at 1. In particular, Vortman seeks to compel discovery of the following information:

1. Programming Code for the NIT used by the FBI to collect computer data, including the IP address, operating system and other data related to “askjeff”;
2. The HTML code (or programming code) for “Website A” (allowing my experts to view the website as it was presented those accessing the website between February 20 and March 4, 2015;
3. The number of visitors to the site between February 20 and March 4, 2015 and the number of total visits (recognizing that distinct visitors may have visited the site more than once);
4. Some measure of the length of visits (e.g., total time all visitors were connected to the site; average time visitors were connected to the site);
5. A summary of any measures that were taken by the FBI or other law enforcement entities to block access to the pictures, videos, and links available on or through the site between February 20 and March 4, 2015;
6. The number of child pornography pictures that were posted on the site between February ...

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