E.D.Va.: Govt SW affidavit showed PC for any computer logged into Playpen on Tor network

In another Playpen child pornography search, the government’s use of the Tor network to take over the Playpen computer and then route to users’ personal computers through it, looking at those computers, was a search. The “commonsense judgment” is that anybody who finds Playpen on the Tor network does so for seeking child pornography, and the USMJ could reasonably so conclude. Thus, the search warrant was valid even though it was for all computers connected to network. United States v. Darby, 2016 U.S. Dist. LEXIS 74960 (E.D.Va. June 3, 2016):

Ultimately, no matter how searchable the Tor network may be, the magistrate judge would have been justified in concluding that those individuals who registered and logged into Playpen had knowledge of its illegal content. The Tor network itself, although it has legitimate uses, is an obvious refuge for those in search of illegal material. At the very least, the Tor network is less searchable than the regular Internet. Defendant fails to explain why someone would go to the trouble of entering the Tor network, locating Playpen, registering for the site, and then logging into the site if they were not looking for illegal content. It is not as if the Internet is not saturated in legal pornography. The magistrate’s common sense judgment would justify her finding that an individual would likely only take these steps if he was seeking child pornography and knew he could find it on Playpen.

In sum, the information in the affidavit provided substantial evidence in support of the magistrate’s finding that there was probable cause to issue the NIT Warrant. The homepage of the website was suggestive of its content and promised anonymity to registrants. Because the website itself was difficult to find, those who accessed it likely knew of its contents. Although it is not beyond possibility that some of those who logged into Playpen did so without intention of finding child pornography, probable cause requires a fair probability that a search will uncover evidence, not absolute certainty.

Each of Defendant’s other grounds for suppression are also without merit, primarily because there was probable cause to issue the NIT Warrant. Defendant asserts that the warrant was overbroad because it authorized searches of every individual that logged into Playpen, potentially “tens of thousands of computers.” First Mot. at 23. This argument is curious. As explained above, there was probable cause to search the computers of individuals that logged into Playpen even though some of them might not have been seeking child pornography. The fact that Playpen facilitated rampant criminality does not affect this finding. Defendant compares the NIT Warrant to the general warrants—issued by the English judges against the colonists—that motivated the passage of the Fourth Amendment. See Virginia v. Moore, 553 U.S. 164, 169, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (summarizing the motivations behind the passage of the Fourth Amendment). Comparing this warrant to those outrages trivializes the struggles of the American Revolution and the achievements of the Constitution. The NIT Warrant describes particular places to be searched—computers that have logged [*28] into Playpen—for which there was probable cause to search. It is not a general warrant.