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United States v. Rosenchein

United States District Court, D. New Mexico

October 2, 2019

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

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          Jerry H. Ritter, U.S. Magistrate Judge.

         This matter comes before the Court on Non-Party Microsoft Corporation's Motion to Modify Rule 1');">17(c) Subpoena [Doc. 1');">125], filed April 1');">18, 201');">19, and fully briefed on May 20, 201');">19. [See Doc. 1');">138]. Presiding District Judge Herrera referred the Motion to the undersigned Magistrate Judge for decision pursuant to 28 U.S.C. § 636(b)(1');">1)(A) and Fed. R. Crim. P. 59(a). [See Doc. 1');">139]. The questions presented concern the proper scope and use of a subpoena to a non-party under the Federal Rules of Criminal Procedure. Having considered Defendant Rosenschein's Response to the Motion [Doc. 1');">136], and all pertinent authority, the Court recommends that the Motion be granted. Additionally, the Court recommends that Defendant Rosenschein's Request for Telephonic Hearing on the Motion [Doc. 1');">141');">1], filed May 22, 201');">19, be denied.

         I. INTRODUCTION

         “It was not intended by [Fed. R. Crim. P.] Rule 1');">16 to give a limited right of discovery, and then by [Fed. R. Crim. P.] Rule 1');">17 to give a right of discovery in the broadest terms.” Bowman Dairy Co. v. United States, 341');">1 U.S. 21');">14, 220 (1');">1951');">1). For this reason, the materials that can be compelled via a Rule 1');">17(c) subpoena are inherently narrow and specific. See, e.g., United States v. Nixon, 1');">18 U.S. 683');">41');">18 U.S. 683, 700 (1');">1974). As one court has said, “[t]he relevance and specificity elements ‘require more than the title of a document and conjecture as to its contents,' and a subpoena should not issue based upon a party's ‘mere hope' that it will turn up favorable evidence.” United States v. Stevenson, 27 F.3d 926');">727 F.3d 926, 831');">1 (8th Cir. 201');">13) (citation omitted). The proponent of a Rule 1');">17 subpoena may not, therefore, utilize a subpoena to “fish[] for evidence that might support his theory, as if he were in the discovery phase of a civil action.” United States v. Richardson, 607 F.3d 357, 368 (4th Cir. 201');">10).

         Defendant Rosenschein's subpoena to non-party Microsoft in this case contained eighteen (1');">18) separate subparts, requesting, among other things, “[a]ny and all” agreements, guidelines, memorandums of understanding, contracts, correspondence and reports generated by Microsoft in relation to its PhotoDNA Service and its relationships with law enforcement, the National Center for Missing & Exploited Children (NCMEC), and electronic service provider Chatstep. [See Doc. 1');">125-1');">1, pp. 9-1');">12]. Rather than identify specific documents to be produced, Rosenschein's subpoena reads like a civil discovery request, seeking “the production of essentially any document that would support his theory that [Microsoft] was in an agency relationship with the Government.” See Richardson, 607 F.3d at 368. Therefore, because Rosenschein's subpoena fails to conform to Nixon's specificity requirement, Microsoft's Motion to Modify the subpoena should be granted. Alternatively, Microsoft's Motion should be granted because compliance with the subpoena as drafted would be oppressive.

         II. BACKGROUND

         Rosenschein is charged with the distribution and possession of child pornography. [See Doc. 1');">1]. As stated by Judge Herrera in her most recent Memorandum Opinion and Order, law enforcement began investigating Rosenschein when the Bernalillo County Sheriff's Office (“BCSO”) received two CyberTipline Reports from the NCMEC. [Doc. 1');">151');">1');">1');">151');">1, 2');">p. 2]. The two CyberTipline Reports that the BCSO received were generated by Chatstep, an electronic service provider that hosts internet-based conversations between users. [Id.]. Chatstep was able to identify the alleged child pornography through its use of Microsoft's PhotoDNA service. [Id.]. PhotoDNA is a cloud-based service developed by Microsoft to help prevent the sharing of child pornography. [Id.]. It works by analyzing digital images to create a unique “hash value” of a file that is then matched against databases of hash values of known child pornography. [Id., p2');">p. 2-3]. Through its use of PhotoDNA, Chatstep identified two images allegedly distributed by Rosenschein as child pornography before the images were submitted to the NCMEC. NCMEC did not view the images, but determined the probable physical origin of the images, and forwarded the material to the New Mexico Attorney General's Office Internet Crimes Against Children Task Force. This prosecution followed.

         Rosenschein issued a subpoena under the authority of Fed. R. Crim. P. 1');">17 to Microsoft on October 1');">11');">1, 201');">18, [Doc. 1');">125-1');">1, p. 6], requesting the following documents:

a. Any and all agreements, formal or informal, memoranda of understanding, directives, guidelines, correspondence, policies, procedures, or other documentation concerning cooperation between Microsoft and law enforcement agencies, including, but not limited to, law enforcement agencies in the State of New Mexico (including the New Mexico Attorney General's Office) or the National Center for Missing & Exploited Children (“NCMEC”), addressing Microsoft's PhotoDNA program, the sharing of hash values related to the PhotoDNA program, or maintaining any set of hash values associated with apparent or actual child pornography to be used with the PhotoDNA program.
b. Copies of any and all documents, electronic correspondence, or other communications sent by Microsoft and/or Microsoft's PhotoDNA program or API associated with the Photo DNA program to NCMEC on behalf of any Chatstep.com user with the moniker "Carlo" on or about July 25, 201');">16 through August 1');">10, 201');">16, concerning those matters addressed in the July 31');">1, 201');">16 CyberTipline Report 1');">13456293 (Exhibit A) and August 8, 201');">16 CyberTipline Report 1');">13596645 (Exhibit B), including copies of any electronic data, notices or reports that Microsoft's photoDNA program or associated API reported to NCMEC (excluding any files containing any photographic images).
c. The URL of any website used by the Microsoft PhotoDNA service that provided NCMEC with the cyber tip information related to Chatstep.com user "Carlo" as referenced above in section (b).
d. The IP address and/or email address used by the Microsoft PhotoDNA program or associated API from which any data, cyber tips, notices or other reports referenced above in section (b) originated.
e. Identification of the individual employed by either Microsoft or Chatstep who was responsible for forwarding any data, notices or other reports referenced in section (b), including name, last known address, phone number and email address, if known. If the reporting individual was not a person, identify the computer program or algorithm that forwarded the data or report to NCMEC.
f. Copies of any and all guidelines, memoranda of understanding policies, procedures or other documentation related to the Microsoft PhotoDNA program, in particular any memorandums of understanding or terms of service that were used by Microsoft or posted on the PhotoDNA Internet page during the months of July and August of 201');">16. This request includes all such materials that were in place with Chatstep.com and NCMEC during July and August of 201');">16.
g. Copies of any memorandums of understanding, contracts, terms of service, agreements or correspondence (in any medium, including email, texts, chats, or other oral or written communications) that Microsoft or any of its subdivisions or subsidiaries has or had with Chatstep or NCMEC addressing Microsoft's Photo DNA program, including, but not limited to, agreements for providing any data, CyberTipline reports, notices, or the use of other shared information like hash value sets. This request includes all documents and material addressing how Microsoft's PhotoDNA program would interact with Chatstep.com to search files posted by Chatstep.com's users then provide any data or CyberTipline reports to NCMEC, especially the two CyberTipline reports addressed in paragraph c above.
h. All correspondence in any form (U.S. mail, private courier, email, texts, chats, telephone logs, telephone notes etc.) that Microsoft sent to or received from the developers or owners of the domain name "Chatstep.com" to either the email address devs@chatstep.com, the street addresses 1');">101');">190-1');">1 Pasadena Ave., Cupertino, California 9501');">14, or 1');">1001');">12 Byrne Ave, Cupertino, California, 9501');">14, or any other destination or email related to Chatstep, addressing or touching upon how to apply for the PhotoDNA program, why Chatstep was initially rejected by Microsoft, how to interface the Photo DNA reporting program with NCMEC, troubleshooting the operation of the Photo DNA reporting program with either Microsoft or NCMEC, ensuring that the reports that PhotoDNA program (or the API associated with that program) were making on behalf of Chatstep were operating correctly. This request includes email attachments or documents referred to in any of these communications.
i. All correspondence in any form (U .S. mail, private courier, email, texts, chats, telephone logs, telephone notes, CyberTipline Reports, data transmissions, etc.) that Microsoft sent to or received concerning the July 31');">1, 201');">16 CyberTipline Report No. 1');">13456293 or the August 8, 201');">16 CyberTipline Report No. 1');">13596645, including but not limited to the URL or IP address of each sender or recipient involved with each electronic correspondence or data transfer.
j. Microsoft.com's registration materials or documents detailing Microsoft.com's (or any Microsoft's subsidiary, including the subsidiaries that control the Digital Crimes Unit or PhotoDNA) registration with NCMEC's CyberTipline, and confirmation that the appropriate sign in credentials were assigned to Microsoft.com.
k. All of Microsoft's Memorandum of Understandings or similar contractual agreements with NCMEC or any other entity addressing the sharing of any set of hash values associated with apparent child pornography images or videos, including but not limited to the Industry Hash Sharing Platform, the Industry Hash Sharing Database, the Technology Coalition hash set, NCMEC's hash database or list, or any set of hash values originating from any Canadian government or organization.
l. Any documentation concerning the hash value match associated with either the July 31');">1, 201');">16 CyberTipline Report No. 1');">13456293 or the August 8, 201');">16 CyberTipline Report No. 1');">13596645, including the identifying name of the hash value set used by the PhotoDNA program that matched the purported upload of an image with any value contained in a hash value set and the actual hash value and hash match number.
m. All reports or correspondence in any form or medium either sent to or received from any source or entity whatsoever concerning the PhotoDNA report on behalf of Chatstep.com that resulted in the July 31');">1, 201');">16 CyberTipline Report No. 1');">13456293 or the August 8, 201');">16 CyberTipline Report No. 1');">13596645, including the IP address or URL for everyone involved in each communication, especially the IP address or URL of the entity sending the original report to NCMEC alerting NCMEC to these two reports. This request includes the original data transfer from Microsoft's PhotoDNA API reporting program to NCMEC concerning these two CyberTipline reports, and all of the data fields that Microsoft's reporting API for the ...

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