United States v. Harney, No. 18-6010 (6th Cir. 2019)
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The FBI gained control over Playpen, a child pornography website. Agents used a controlled server containing a copy of the website and continued operating Playpen to catch its users. Playpen uses Tor, which conceals users’ IP addresses and other identifying information. The government sought a warrant to authorize additional instructions to the content that a computer automatically downloaded when visiting the site, to cause the user’s computer to send back specific information, including the actual IP address. A magistrate authorized the government to use the technique to search any computer that logged into Playpen with a username and password for 30 days. The technique identified Harney. He created a Playpen profile and spent about 80 minutes on the site during the window of observation. The protocol captured Harney’s IP address, which allowed agents to get his physical address from his internet provider. Officers obtained a warrant and searched Harney’s house. Harney admitted and a forensic examination confirmed that he had downloaded child pornography. The government charged Harney with receiving and possessing child pornography.
The Sixth Circuit affirmed the denial of Harney’s motions to suppress the evidence and to require the government to hand over all information about the technique.. The investigators acted in good faith in relying on the warrant. The government did not violate 18 U.S.C. 3509(m), which prohibits reproducing child pornography “in any criminal proceeding.” An investigation is not a criminal proceeding. Harney has not shown that the government engaged in wrongdoing in employing the technique.
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