* This is a district court Judge’s ruling on a motion, which has not yet withstood appellate scrutiny. However the issue presented is important to capture emerging trends in the field.
Defendant faces a two-count Indictment for receipt, distribution, and possession of child pornography in violation of 18 U.S.C. § 2252. Defendant was caught sharing files using Peer-to-Peer technology on the Gnutella network. The detective used a “law enforcement tool,” which searches the Gnutella network for IP addresses sharing files previously identified to be child pornography. The software works in conjunction with a database. Once a user is identified the Detective uses Phex (a publically available file sharing program) to download the file(s) from the user. Both the software and the database however, are licensed to and available only to law enforcement. Defendant filed a motion to compel discovery for: 1) identification of the software; 2) “objective rates of reliability possessed by the developer of the software;” and 3) the opportunity to inspect the software used.
The Government opposed the motion arguing that neither the “search tool” nor Phex is capable of placing data on someone else’s computer; they can only identify other computers and download/retrieve files (assuming the Gnutella network users have elected to share the files).
The Defendant argues that Federal Criminal Rule 16(a)(1)(E) provides a vehicle for him to acquire this information. The Judge noted that the defendant must make a two-part showing: 1) The information is within the government’s possession, custody, or control; and 2) he must demonstrate materiality of the information.
The Judge found that defendant’s argument regarding the objective rates and reliability for both the search software and Phex was possessed by the developer of the software not the police department who merely possessed a license to use it. Therefore the first prong of Rule 16 was not met. The issue regarding the identification and opportunity to inspect the two software programs was a closer issue for this Judge. He found that the software was in the exclusive possession of the police department and not also with the United States Attorney. The Judge relied on case law from other circuits in holding that the term “government” as used in Rule 16 does not encompass local law enforcement offices. Therefore, the defense failed the first prong on these issues also.