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United States v. Rosenschein

United States District Court, D. New Mexico

May 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GUY ROSENSCHEIN, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on Defendant Dr. Rosenschein's Motion to Compel Production of NCMEC Materials [Doc. 57]. Defendant Guy Rosenschein (“Rosenschein”) seeks to compel the Government to produce certain information in the possession of the National Center for Missing and Exploited Children (“NCMEC”) in accordance with Rule 16 and Brady v. Maryland, 373 U.S. 83 (1963). The questions at the heart of the motion are whether NCMEC is part of the prosecution team for purposes of discovery, and whether the information Defendant seeks to compel is material to his defense. On April 4, 2019, the Court held a hearing on the motion at which Defendant was present. In ruling on the motion, the Court has considered the evidence presented at the hearing, the arguments of counsel, and the parties' written submissions. See Docs. 57, 65, 72, 76, 102, and 106. The Court concludes that for purposes of this particular case NCMEC is part of the prosecution team. In addition, the Court concludes that some, but not all, of the documents that are the subject of the motion to compel are material. Therefore, the Court concludes that the motion should be granted in part and denied in part as further described herein.

         BACKGROUND

         Law enforcement began investigating Rosenschein when the Bernalillo County Sheriff's Office (“BCSO”) received two CyberTipline Reports from NCMEC. Under federal law, NCMEC is

statutorily obliged to operate the official national clearinghouse for information about missing and exploited children, to help law enforcement locate and recover missing and exploited children, to “provide forensic technical assistance ... to law enforcement” to help identify victims of child exploitation, to track and identify patterns of attempted child abductions for law enforcement purposes, to “provide training ... to law enforcement agencies in identifying and locating non-compliant sex offenders, ” and of course to operate the CyberTipline as a means of combating Internet child sexual exploitation.

Ackerman v. United States, 831 F.3d 1292, 1296 (10th Cir. 2016) (citing 42 U.S.C. § 5773(b)).

         The two CyberTipline Reports that BCSO received were generated by Chatstep, an electronic service provider that hosts internet-based conversations (also known as “chats”) between users. On July 31, 2016, NCMEC received CyberTipline Report 13456293 (“Jul. 31 Report”), in which Chatstep notified NCMEC that an image of child pornography was uploaded through its service. On August 8, 2016, NCMEC received CyberTipline Report 13596645 (“Aug. 8 Report”), wherein Chatstep notified NCMEC that a second image of child pornography was uploaded through its service. In both reports, Chatstep indicated that the user responsible for uploading the images was identified as “Carlo.”

         The Government alleges that the CyberTipline Reports submitted to NCMEC indicate that the contraband images were submitted on behalf of Chatstep and PhotoDNA. PhotoDNA is a cloud-based service developed by Microsoft to help prevent the sharing of harmful, child exploitation images. PhotoDNA works by obtaining the hash value of a file and converting the file into a numerical value that is matched against databases of hash values of known child pornography. Through its use of PhotoDNA, Chatstep identified the two images distributed by “Carlo” as child pornography before the images were submitted to NCMEC. Chatstep did not submit to NCMEC the content of the chat session during which these images were distributed- it only submitted the contraband images. NCMEC did not view the images, but it did use the IP address information to investigate the probable physical location of the internet user “Carlo.” Upon finding that location to be Albuquerque, NCMEC forwarded the material to the New Mexico Attorney General's Office Internet Crimes Against Children (“ICAC”) Task Force, and shortly thereafter BCSO initiated a criminal investigation.

         DEFENDANT'S DISCOVERY REQUESTS

         Defendant seeks to compel NCMEC to produce the following information:

         A. All correspondence that NCMEC sent to the developers or owners of the domain name “Chatstep.com” at either the email address devs@chatstep.com or the street address 10190-1 Pasadena Ave., Cupertino, California 95014. This request includes, but is not limited to, all requests that NCMEC made to Chatstep to sign up for its CyberTipline, the NCMEC receipts for the alleged child porn associated with this case, and all monthly reports addressing NCMEC's “VPN list.”

         B. All correspondence that NCMEC sent to or received from Microsoft.com concerning Microsoft's PhotoDNA program addressing the financing or technical development of the PhotoDNA software or any associated API, or NCMEC's specific needs or software requirements to run the program or any associated API.

         C. Microsoft.com's and Chatstep.com's registration date and related registration materials and documents detailing Chatstep.com's and Microsoft.com's (or Microsoft's PhotoDNA subsidiary) registration for NCMEC's CyberTipline.

         D. All NCMEC's Memorandum of Understandings or similar agreements with either Chatstep.com or Microsoft.com addressing the sharing of NCMEC's library or platform of hash values associated with child pornography images or videos.

         E. All documents, contracts, communications, memorandums, or notes of any kind addressing financial or technical support for Microsoft's PhotoDNA program, whether the financial or technical support was running from Microsoft to NCMEC, or from NCMEC to Microsoft.

         F. All reports, coming from any source or entity whatsoever, or being delivered to any source or entity, concerning the two reports of child pornography in this case from July 31, 2016 (CyberTipline Report 13456293) or August 8, 2016 (CyberTipline Report 13596645).

         G. All of NCMEC's presentation materials, including all drafts of those materials, and all related correspondence with prosecutors and law enforcement officers about the presentation, for the Crimes Against Children conference for 2017 addressing the following presentation: “Emerging Issues and Insights Related to Child Pornography Cases Based on CyberTipline Reports.”

         H. All correspondence, in any form, that came from Microsoft's PhotoDNA program, or the API associated with the PhotoDNA program, involving the two CyberTipline reports related to this case: the July 31, 2016 CyberTipline Report 13456293, or the August 8, 2016 CyberTipline Report 13596645.

         DISCUSSION

         Defendant argues that under Rule 16 and Brady v. Maryland, 373 U.S. 83 (1963), he is entitled to the above-listed discovery from NCMEC. He further argues that under United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), NCMEC is a federal law enforcement agency that participated in this case, making it subject to Rule 16 because NCMEC “qualifies as a governmental entity, ” id. at 1297. Therefore, materials in the possession, custody and control of NCMEC fall within the Government's Rule 16 discovery obligations as such materials are directly related to the Government's effort to prosecute Defendant. See Doc. 57. The Government, in turn, contends that Defendant's argument is premised on an unjustifiably expansive reading of Ackerman. According to the Government, NCMEC is not part of the “prosecution team” and ...


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