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Voicenet Communications, Inc. v. Corbett

September 13, 2010

VOICENET COMMUNICATIONS, INC., ET AL.
v.
THOMAS W. CORBETT, JR., ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM AND ORDER

This case concerns a search and seizure conducted on the plaintiffs' premises on January 21, 2004. The plaintiffs, providers of various computer and Internet services, claim that the defendant law enforcement officials*fn1 violated various constitutional and statutory rights in connection with the seizure, pursuant to a search warrant, of their computer equipment.

The search arose out of an investigation into whether evidence of child pornography could be found on the plaintiffs' Quikvue internet service. Based upon a tip that child pornography was available through Quikvue, the defendants conducted an investigation that resulted in the search of the plaintiffs' property and the seizure of the plaintiffs' Quikvue-related computer equipment and documents. The plaintiffs allege that the seizure of their materials violated the First, Fourth and Fourteenth Amendments; the Communications Decency Act (the "CDA"), 47 U.S.C. § 230; and the Commerce Clause of the United States Constitution.

The Court considers the parties' four cross-motions for summary judgment.*fn2 Four issues arise out of those motions: (1) whether the search and seizure of the plaintiffs' property violated their constitutional rights under the First, Fourth or Fourteenth Amendments; (2) whether the defendant governmental entities had a policy, practice or custom that resulted in a violation of the plaintiffs' First Amendment rights; (3) whether the defendants' actions were in violation of the commerce clause of the United States Constitution; and (4) whether the plaintiffs are entitled to injunctive or declaratory relief under the CDA.

The Court grants summary judgment for the defendants on all of the plaintiffs' claims. The Court finds that the defendants' search and seizure violated neither the First nor the Fourth Amendment. Because the Court finds no constitutional violations, the Court also finds for the defendants on the plaintiffs' Monell and commerce clause claims, both of which depend upon the existence of a constitutional violation. Finally, the Court grants summary judgment for the defendants on the plaintiffs' claims for injunctive and declaratory relief under the CDA, finding that such claims are either moot or would require the Court to impermissibly enjoin a future criminal proceeding.*fn3

I. The Summary Judgment Record

In setting forth the summary judgment record, the Court

(1) describes the plaintiffs' Quikvue service, and (2) discusses the facts surrounding the defendants' investigation, the issuance and execution of the search warrant, and the seizure of the plaintiffs' materials.

A. Quikvue

Voicenet Communictions, Inc. ("Voicenet") is a technology company that provides, among other services, Internet access. Omni Telecom, Inc. ("OTI") also provides Internet access and is a Voicenet customer. Voicenet and OTI combined their services to create Quikvue, a subscriber-based service that provides its customers with web access to the Usenet, an area of the Internet that exists independently of the World-Wide-Web.

The Usenet is comprised of text, video, images, software, or other files, all referred to as "articles." Each day, a large amount of Usenet articles are posted and dispersed among separate Usenet newsgroups. The articles are disseminated over the Usenet peer network, a network connecting computers worldwide. A Usenet peer can automatically copy and store Usenet content and make such content available both to other peers and to its individual users or customers.

Individual users access the Usenet by using a "newsreader." Newsreaders typically work by communicating with a Usenet peer or peers to index selected articles or newsgroups. Newsreaders can function as standalone pieces of software or they can be web-based.

Quikvue is a web-based Usenet newsreader. Quikvue automatically compiled and stored Usenet articles on the plaintiffs' servers. For a fee, Quikvue subscribers could access those articles through an interface provided on the World--Wide-Web. As new articles were collected and stored, older articles were automatically deleted from the plaintiffs' servers.

On its website, Quikvue advertised itself as a place for uncensored and unmonitored access to Usenet content. Quikvue's homepage declared that it contained "millions of uncensored[] pictures, movies, discussions and more." It stated that anyone "looking for uncensored photo[]s[,] movies[,] and more" had "just hit the motherload," promising "unlimited, full access" to "an all-can-eat taste of 'the Internet gone wild.'" It also emphasized user-privacy, stating that "[w]e respect your privacy" and that "[w]e don't track the types of files you view or download or the categories you visit." See Affidavit of Probable Cause for Search Warrant ("Aff. of P.C.") at 2-3, attached as Ex. E to the Bucks County Defendants' motion.

The website also contained a disclaimer explaining that Quikvue is "an extremely fast newsreader and compiler of pictures and other multimedia internet content." It warned that, because of its speed and the fact that OTI and Quikvue did not control the content accessed through Quikvue, "erotic or otherwise offensive material and material not suitable for children and teens under the 18 years of age may be presented . . . even if not requested by the user." It stated that the user "must decide what is appropriate or legal to download." Id.

B. The Investigation and Execution of the Search Warrant

In late 2003, defendant Agent Deery, an employee of the Pennsylvania Office of the Attorney General (the "OAG") assigned to the Internet Crimes Against Children Task Force (the "ICAC"),*fn4 received an anonymous tip that Quikvue was selling child pornography.*fn5 Based on this tip, Agent Deery began an investigation into Quikvue.

During the investigation, Agent Deery understood Quikvue to be a service that provided its subscribers with an easy way to access the Usenet. She also believed that Quikvue "was pooling all of [the Usenet] information onto their servers and categorizing it and making it easier for people to get to." Deposition Testimony of Detective Michele Deery ("Deery Dep.") at 40, attached as Ex. H to the plaintiffs' motion.

Using search terms that she knew to be regularly associated with sexually explicit depictions of children, Agent Deery confirmed that Quikvue users were able to use the service to search for, find and download child pornography. Agent Deery describes her investigation in the affidavit of probable cause.

Using an undercover credit card and email address, Agent Deery signed up for a 3-day trial subscription to Quikvue. She then entered the search term "preteen." Approximately 50 images were displayed. The images depicted preteen girls in the nude, some of them in sexual poses. One of the images depicted a young girl performing oral sex on what appeared to be an adult male. Another depicted a preteen boy also performing oral sex on what appeared to be an adult male. Aff. of P.C. at 3-4.

After the 3-day trial subscription expired, Agent Deery used the same undercover credit card and email to purchase a monthly subscription to Quikvue. With this subscription, Agent Deery entered the search term "underage." The search yielded approximately 700 images. She described six of the images in detail in the affidavit and also stated that "[a] significant number of images located" depicted children under the age of 18, mainly females, in various states of undress and engaged in sexual acts with other children or adults. Id. at 4. Another search, using the term "firsthair," yielded approximately 1500 images. Agent Deery stated in the affidavit that "[a]gain a significant amount of these pictures" depicted both boys and girls under the age of 18 in various states of undress and/or engaging in sexual acts with other children or adults. Id. at 4.

On December 2, 2003, Agent Deery downloaded 10-15 images from Quikvue's website and simultaneously captured the IP address of the location from which the images had been sent. Working with Detective McDonough, Agent Deery confirmed that the computers hosting the images were on plaintiffs' premises in Ivyland, Pennsylvania. Agent Deery noted that, unlike other peer-to-peer services that she had encountered in her previous child pornography investigations, Quikvue appeared to store the images on their servers, rather than merely facilitating a transmission between two parties.

Agent Deery sent some of the images that she discovered to the National Center for Missing and Exploited Children (the "NCMEC").*fn6 The center compared Agent Deery's images to images in their system and verified that 8 of the images were in their database of known child pornography depicting abuse of real children.*fn7

Agent Deery accessed the Quikvue website again on January 20, 2004. She conducted another search using the term "underage." That search yielded 2803 images. Various images from this search depicted females under the age of 18 exposing their genitals and/or engaging in sexual acts with other children or adults.

After completing the investigation, Agent Deery and Detective McDonough drafted the affidavit of probable cause. After briefly describing the relevant experience and expertise of Agent Deery and Detective McDonough, the affidavit avers that we believe that the crime of Sexual Abuse of Children, Possession/Distribution of Child Pornography, a violation of Pennsylvania Crime Code 18 PA CS Sexual Abuse of Children 6312 C and D, and 18 PA CS A 7512 Criminal Use of a Communicaion Facility was/is being committed by, Voicenet, OTI Productions, and Quikvue, located at 17/and 21 and 23 Richard Rd, Ivyland Pennslyvania. Furthermore, we believe that evidence of the crimes relating Sexual Abuse of Children, Possession/Distribution of Child Pornography, . . . and . . . Criminal Use of a Communication Facility will be located at the premises at 17 (Voicenet) and 21 (OTI Productions) and 23 Richard Road.

Aff. of P.C. at 1.

Along with the detailed description of the investigation, the affidavit provides a description of how computer systems operate and highlights the difficulties attendant in locating and segregating evidence of a crime on a computer system. The affidavit explained that, in order to accurately retrieve and preserve any evidence of contraband contained in the system, it is best to seize an entire computer system and search it offsite. The affidavit also provided that, according to the affiants' experience, computers are utilized by individuals who exploit children, including those who collect and distribute child pornography.

The affidavit requested permission to search plaintiffs' premises and to seize and transport the Quikvue computer system back to a secure location for an offsite search. Attached to the affidavit was a list of items the defendants sought permission to seize. In addition to computer hardware, images of child pornography and anything relating to the distribution, possession, receipt, purchase, sale, trade or transmission of child pornography, the attachment also listed records related to the plaintiffs' business transactions and subscriber information. Aff. of P.C., Attachment A.

Non-defendant and Bucks County Assistant District Attorney Robert Mancini, approved the search warrant. District Justice H. Warren Hogeland signed the warrant on January 20, 2004.

Defendants Agent Deery and Detectives McDonough and Thiel, accompanied by uniformed officers and non-defendant Special Agent Steven Arter, executed the warrant on the morning of January 21, 2004. Brian Adelson, then Voicenet's Vice-President of Operations, and Rudy Kappra, Voicenet's Vice President of Development, assisted Agent Arter in finding the Quikvue equipment. The Quikvue equipment was stored in a "server room," which contained approximately 150-200 pieces of equipment. Mr. Adelson identified a rack containing all of the Quikvue equipment, which included a web server and two JET-STOR IDE RAID arrays (the "RAID arrays"), which are large data storage devices that contained the Quikvue content.

The defendants seized the web server, the two RAID arrays, and two additional servers, the Newsbin01 server, which was necessary to read the content on the RAID arrays, and the APPDB server, which contained the customer records.*fn8 The defendants also seized four "barrel keys" ...


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