Chatstep Code 219

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Chatstep Code 219

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2020 | Cited 0 times | D. New Mexico | November 12, 2020
IN THE UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA, Plaintiff, vs. CR. No. 16-4571 JCH
MEMORANDUM OPINION AND ORDER This matter is before the Court on closely related motions to suppress evidence, as well as two supplemental motions, filed by Defendant Guy Rosenschein (“Rosenschein”) as described below. On July 27, 2020, the case came before the Court for a five-day evidentiary hearing. In light of the COVID-19 pandemic and over Rosenschein’s objection, the Court conducted the hearing via videoconference. The parties provided the Court with paper and electronic copies of their exhibits in advance of the hearing and also displayed them onscreen during the hearing. All witnesses and counsel participated from their homes or offices with the exception of the Defendant, who was present in the courtroom with his two attorneys and their support staff. Having considered the testimony, the exhibits, and the arguments of counsel, the Court concludes that Rosenschein’s suppression motions under Ackerman, as well as both supplemental motions, should be denied.
The Court will address Rosenschein’s Franks motions and his motion to suppress for unconstitutional conduct in a separate Memorandum Opinion and Order.
FACTUAL BACKGROUND Rosenschein is charged with the distribution and possession of child pornography. [See Doc. 1]. Detective Kyle Hartsock of the Bernalillo County Sheriff’s Office (“BCSO”) began investigating Rosenschein in November of 2016 after his department received two CyberTipline Reports from the National Center for Missing and Exploited Children (“NCMEC”) . The two CyberTipline Reports that the BCSO received were generated by Chatstep, an electronic service provider that hosts internet-based conversations between users. Chatstep was able to identify the alleged child pornography through its use of Microsoft’s PhotoDNA service. PhotoDNA is a cloud-based service developed by Microsoft to help prevent the sharing of child pornography. It works by analyzing digital images to create a unique “hash value” (consisting of a long string of letters and numbers) for that image that is then matched against databases of hash values of known child pornography. Through its use of PhotoDNA, Chatstep identified, but did not view, two images allegedly distributed by Rosenschein as child pornography before the images were submitted to the NCMEC through the CyberTipline. NCMEC did not view the images either, but it used the IP address attached to the tips to determine the probable physical origin of the images. NCMEC then forwarded the CybperTip reports, including the flagged images, to the New Mexico Attorney General’s Office Internet Crimes Against Children Task Force (“ICAC”) , which then contacted Detective Hartsock.
PROCEDURAL BACKGROUND In the first suppression motion, Motion to Suppress Evidence & Request for an Evidentiary Hearing under Franks v. Delaware [Doc. 71], Rosenschein asks the Court to suppress all evidence collected from the search of his home, as well as the fruits of all evidence collected from that search. As grounds for his motion, he contends that the search warrant signed by a judge from the
Second Judicial District Court was based on Bernalillo County Sheriff’s Office Detective Kyle Hartsock’s affidavit, which he alleges contained recklessly misleading information and omitted critical information that undermined the validity of the warrant. In his second motion, Defendant Dr. Rosenschein’s Motion to Suppress Evidence under Ackerman [Doc. 74], he asserts that NCMEC has been held to be a government agent, and that Microsoft 1
, in turn, is acting as NCMEC’s agent by designing and providing its PhotoDNA service to electronic communication service providers. Rosenschein’s motion turns on several premises: (1) that Microsoft is NCMEC’s agent, and therefore is itself a government agent, (2) that PhotoDNA searches and seizes online images when it generates hash values, and (3) that an individual has a reasonable expectation of privacy in images he uploads to Chatstep. Rosenschein’s third motion to suppress, Motion to Suppress Evidence Due to Detective Hartsock’s Unconstitutional Conduct [Doc. 77], asserts the argument that Detective Kyle Hartsock improperly viewed images that Rosenschein uploaded to Chatstep without a warrant, and then sought a warrant to search Rosenschein’s home based on viewing those images. Rosenschein contends that Hartsock’s affidavit failed to inform the judge that he had viewed the images without a warrant, failed to give a detailed description of the images, and failed to attach the images to his affidavit. Rosenschein contends that without this information, there was no probable cause for the warrant. All three motions were filed in April of 2018.
In May of 2018, the Government filed a combined response to all three motions to suppress. [Doc. 82]. On May 30, 2018, Rosenschein filed his consolidated reply brief. [Doc. 86]. On June 27, 2018, the Government filed a surreply [Doc. 94], and on August 15, 2018, Rosenschein filed a surreply [Doc. 108] to the Government’s surreply. Meanwhile, at a status conference on July 17,
1 As discussed below, Rosenschein later amended his motion to assert that Chatstep is also a government agent.
2018, the parties informed the Court that they would need to litigate various discovery issues before they would be prepared for a hearing on the trio of motions to suppress. They requested that while that discovery and anticipated litigation was pending, the Court move forward on Rosenschein’s fourth, unrelated motion to suppress statements. 2
The Court set the trio of motions to suppress for a joint hearing to begin June 10, 2019 [Doc. 132]. In the meantime, Rosenschein sought discovery from NCMEC, Microsoft, Chatstep, and other third parties, resulting in extensive motion practice, including but not limited to various motions for Rule 17(a) and 17(c) subpoenas, motions to quash, motions to compel, motions to reconsider, motions to intervene by third parties, and motions to exclude witnesses. Due to the pendency of those motions, the Court granted Rosenschein’s motion to vacate the June 10, 2019 hearing. The undersigned addressed the bulk of the discovery motions, while two others were referred to a United States Magistrate Judge. Rosenschein filed objections to the Magistrate Judge’s recommendations, which then had to be briefed and ruled upon by the undersigned.
Furthermore, the outcome of the discovery litigation prompted the parties to file yet more motions and briefing regarding the three motions to suppress. These include: (1) Rosenschein’s Updated Motion to Suppress Illegally Obtained Evidence for Lack of Probable Cause [Doc. 254], the Government’s response [Doc. 278], Dr. Rosenschein’s Supplemental Brief in Support of His Suppression Motion Under Franks v. Delaware [Doc. 293], the Government’s response [Doc. 295], and Rosenschein’s reply [Doc. 299]; and (2) Defendant Dr. Rosenschein’s Corrected,
2 Rosenschein’s fourth suppression motion [Doc. 61] asked the Court to suppress statements Rosenschein made as a result of interrogation after his arrest. That motion was also fully briefed by this time and ready for hearing. The Court set it for hearing on September 11, 2018. However, on August 30, 2018, the Government filed an unopposed motion to continue the hearing [Doc. 109]. The motion was granted, and the Court reset the evidentiary hearing for November 28, 2018. On February 21, 2019, the Court granted the motion to suppress statements. [Doc. 118].
Amended Motion to Suppress Evidence Under Ackerman [Doc. 269] and the Government’s response [Doc. 279].
Over the Defendant’s objection, the hearing was reset for July 27, 2020 via video conference. Defendant argued that the hearing should be postponed until such time that it could be held safely with all participants present in the courtroom. The court overruled his objection [Doc. 294], and discovery motion practice continued until shortly before the hearing.
DISCUSSION I. Ackerman Motion In his original motion [Doc. 74] to suppress evidence under United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), Rosenschein argues that NCMEC has been held to be a government entity and agent, and that Microsoft, in turn, is acting as NCMEC’s agent by designing PhotoDNA to search for known images of child pornography and by providing the PhotoDNA service to electronic communication service providers like Chatstep. In his subsequent corrected and amended motion [Doc. 269], Rosenschein argues that both Microsoft and Chatstep acted as government agents for NCMEC by using PhotoDNA to search for images of child pornography and seize his private correspondence, thereby violating his Fourth Amendment right to be free from unreasonable search and seizure of images that he uploaded on Chatstep. He also argues that he had a subjective as well as an objectively reasonable expectation of privacy in those images. A. Reasonable Expectation of Privacy 1. Legal Standard
” A search for purposes of the Fourth Amendment occurs when government officials violate an individual’ s legitimate expectation of privacy.” United States v. Nicholson, 144 F.3d 632, 636 (10th Cir. 1998). If there is no recognizable privacy interest or if the search is performed by a
private actor, then the Fourth Amendment does not apply. The Supreme Court has set out a two- part test for analyzing whether a defendant had a reasonable expectation of privacy in a place to be searched: first, whether the movant has exhibited an actual, subjective, expectation of privacy; and second, whether such subjective expectation is one that society is prepared to recognize as objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979). The defendant carries the burden of making the threshold showing that he has both a subjective expectation and an objectively reasonable expectation of privacy in the area searched and in relation to the items seized.” United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016); Nicholson, 144 F.3d at 636.
2. Discussion (a) Facts The developers of Chatstep, Saurabh Davala and Sundeep Gottipati, intended to create a website that made it easy for people to communicate or “chat” with each other online without having to create an account. [Davala, Tr. 7/27/2020 at 174-75; Gottipatti, Tr. 7/30/2020 at 12]. The website touted itself as a place for “secure, private beautiful online group chat.” Ex. 4. During the relevant time period in this case, Chatstep users were able to use the website’s services anonymously, without registering or creating any sort of membership or account. [Davala, Tr. 7/27/2020 at 173, 175; Gottipati, Tr. 7/30/2020 at 12]. The word “secure” on the website referred to the use of “https,” which is a secure way for websites to operate, as well as having the option to create a chatroom with a password. [Davala, Tr. 7/27/2020 at 174]. The word “private” on the website referred to that fact, and the fact that users could further hide their identity by choosing any nickname they wanted. [Davala, Tr. 7/27/2020 at 174]. However, from the point of view of Chatstep co-creator Gottipati, Chatstep was never truly private. Rather, it permitted people to
communicate anonymously online, but the developers might still be able to determine someone’s identity through their IP address. [Gottipati, Tr. 7/30/2020 at 12-13].
In order to communicate with others on Chatstep, users could click on a link on the homepage to access a list of public chat rooms; in the alternative, they could enter the name of a private chat room and its corresponding password. [Id. at 176, 248]. Thus, a public chat room is one that is available to any anonymous user of the Chatstep website. Conversely, a private chat room is still anonymous but requires a password for entry. [Id. at 175-176]. Finally, the user would enter a nickname that he or she would use while in the chosen chat room. [Id.] Up to 50 users could be in the same chatroom at once. [Id. at 177]. An undercover police officer could join a chat room under a fictional nickname, just like any other user, without any help from Chatstep or its developers. [Id. at 218]. Once in a chatroom, a user could converse or share images with others. [Id. at 177-78].
During the relevant time frame, Chatstep’s terms of service (found under the FAQ, or “frequently ask ed questions” link along the lower left side of any chatroom page) stated, “We may preserve or disclose any information if we believe that it is reasonably necessary to comply with a law, regulation, legal process, or governmental request; to protect the safety of any person; … or to protect Chatstep rights or property.” [ Id. at 181, 249-250; Exs. 5, 7]. Thus, users of Chatstep were warned that any illegal information or images could be disclosed. [Id.] Around September of 2015, Chatstep also implemented in its chat rooms a “report image” button that, when pressed, would reveal the IP address of the sender of any image. [Davala, Tr. 7/27/2020 at 178-79]. This was meant to act as a deterrent to Chatstep users sharing illegal photos because they would know that other users could report them. [Davala, Tr. 7/28/2020 at 99-100; Gottipati, Tr. 7/30/2020 at 83].
The evidence shows that on July 31 and August 8, 2016, an individual using the pseudonym “Carlo” entered a Chatstep chat room and uploaded images that Chatstep sent to PhotoDNA, which then flagged the images as matching known child pornography. [Exs. 10, 11, 16, 17]. Chatstep did not review the images. [Davala, Tr. 7/27/2020 at 202, 210, 213]. In turn, Chatstep initiated a CyberTipline Report, which PhotoDNA then routed to NCMEC. [Lilleskare, Tr. 7/27/2020 at 41- 42]. Due to a data loss by Chatstep’s web hosting provider, Chatstep could not independently confirm the information in the receipts they received from the CyberTipline, and there is no evidence as to whether Carlo attempted to share the images in a private or public chat room on Chatstep. [Davala, Tr. 7/27/2020 at 211, 214; Davala, Tr. 7/28/2020 at 90-92; Gottipati, Tr. 7/30/2020 at 104].
In lieu of live testimony, Rosenschein has offered his Declaration [Doc. 86-3, Ex. AM] of May 30, 2018, in which he states, “When using the Chatstep Internet site, I believe d that all of my communications, in any form, would remain private.”
(b) Analysis Rosenschein attempts to show that he had a subjective expectation of privacy through his single statement in his declaration that he believed that all of his communications on Chatstep, “in any form, would remain private.” He relies, at least in part, on the fact that the website advertised “ secure, private beautiful online group chat.” However, the Court struggles to find Rosenschein’s subjective expectation of privacy credible. Rosenschein admitted that he had used Chatstep multiple times and had used various nicknames—so many, in fact, that he could not remember them all. [Doc. 279-14 at 4 and 8 of 10]. Thus, one can infer that he was quite familiar with Chatstep and the fact that people there did not use their real names. He acknowledged that he didn’t know the people he chatted with. [Id. at 4 of 10]. And, given the fact that he was familiar with
Chatstep, one can also infer that he knew about the “report image” button that appeared whenever an image was shared. That button, which was active during the relevant time frame, would put every Chatstep user, including Rosenschein, on notice that anyone could report them, either to Chatstep or to law enforcement, if that user uploaded an illegal image. Those facts significantly undercut Rosenschein’s claim to a subjective expectation of priva cy.
Regardless of the credibility of his asserted subjective beliefs, Rosenschein has not met his burden to show that he had an objectively reasonable expectation of privacy in the images uploaded to a chatroom on Chatstep. The evidence before the Court shows a user like Rosenschein could not know the identities of those with whom he was sharing images on Chatstep. The website was entirely anonymous, required no registration or identification, and merely asked users to select a nickname that could be changed or altered by the user at will. At any time, a user could be communicating with a law enforcement officer investigating crimes against children or the user’s own nextdoor neighbor—t here was simply no way to know. Despite these facts, Rosenschein asserts that he expected that his communications would remain private. It strains credulity to think that the law recognizes as private communications made to unknown individuals. As a matter of common sense, the first step one takes in preserving the privacy of a communication is to know the identity of the person with whom one is communicating. The second step is to try to control who has access to the communication. But on Chatstep, users could do neither of these things, as a chat room was essentially a public space that individuals could enter and leave at will. Rosenschein has presented no evidence that the communications at issue in this case took place in a private chatroom, which although it remained anonymous, at least required a password for entry. “Those who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private.” United
States v. Barrows, 481 F.3d 1246, 1249 (10th Cir. 2007). Essentially, Rosenschein confuses anonymity with privacy, but they are not one in the same.
This case is similar to United States v. Morel, 922 F.3d 1, 9-10 (1st Cir. 2019), in which the defendant was charged with possession of child pornography after uploading images to a website which made it impossible to prevent third parties from accessing the images. Although the images in Morel were uploaded to albums on the website and therefore publicly available in a more permanent manner than images on Chatstep, id. at 10, that case is analogous this one because in both instances, the defendant exercised no control over who viewed the images, and in that sense they were publicly available. The First Circuit concluded that Morel lacked a reasonable expectation of privacy because “[n]o evidence suggests that Morel took affirmative steps to protect the images.” Id .
Based on similar reasoning, several courts have concluded that users do not have a reasonable expectation of privacy in messages they upload in chat rooms. See, e.g., United States v. Bode, 2013 WL 4501303 at *16 (D. Md. Aug. 21, 2013) (unpublished) (distinguishing chatrooms, which are exposed to the public, from emails, which are private, person-to-person communications); United States v. Maxwell, 45 M.J. 406, 418-19 (C.A.A.F. 1996) (noting that “[m] essages sent to the public at large in [a] ‘chat room’ . . . lose any semblance of
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