ORDER
Before the Court are two Motions to Suppress, one filed by Defendant Beau Croghan in Case No. l:15-cr-48 (“Cro-ghan”), and one filed by Defendant Steven Horton in Case No. l:15-er-51 (“Horton”). Croghan Clerk’s No. 33; Horton Clerk’s No. 45. The Government filed an identical resistance brief in each case. Croghan Clerk’s No. 36; Horton Clerk’s No. 49. Because the facts leading to each Defendant’s arrest are fundamentally the same, the Court considers the Motions to Suppress together. And, because the facts are undisputed, the Court agrees with the parties that no hearing is necessary. The matters are, therefore, fully submitted.
I. FACTUAL BACKGROUND
In approximately September 2014, the Federal Bureau of Investigation (“FBI”) began investigating a child pornography website known as “Playpen.” NIT Warrant
During the course of its investigation, the FBI connected to the Playpen website and discovered that it appeared to be dedicated to advertising and distributing child pornography. Id. ¶¶ 11-12. In December 2014, a foreign law enforcement agency advised the FBI that it had discovered the actual IP address of the Playpen server and that such server was located in Lenoir, North Carolina. Id. ¶ 28. In January 2015, the FBI obtained and executed a search warrant whereby it seized the Playpen website server. Id. Hoping to locate and identify visitors to the site, the FBI placed a complete copy of the Playpen website, including all of the child pornography on the website, on a government-controlled server located in Newington, Virginia. Id.) see also Gov’t Resistance Br. at 2. On February 19, 2015, the FBI arrested the suspected administrator of the Playpen website and “assumed administrative control” of it. NIT Warrant ¶ 30.
On February 20, 2015, the FBI submitted an application for and affidavit in support of a search warrant to Eastern District of Virginia Magistrate Judge Theresa Carroll Buchanan. See generally NIT Warrant. The affidavit provided that the FBI intended to continue operating the Playpen website from its own server for a period of time not to exceed 30 days in an attempt to identify users of the site. Id. ¶ 30. Because the site utilized the Tor network to mask user identify information, the FBI requested that Magistrate Judge Buchanan authorize use of a “Network Investigative Technique” (“NIT”) whereby the FBI would insert computer software into the Playpen website that would assist it in “locating] and apprehending] the TARGET SUBJECTS who are engaging in the continuing sexual abuse and exploitation of children” by accessing the Playpen website. Id. Once installed on the Playpen website on the government-controlled server, the NIT would be deployed to the computer of any user who visited the Playpen website and entered a user name and password. Id. ¶¶ 31-34; Croghan Br. at 7 (noting that the NIT would be deployed to “ ‘any user’ who logged into the site with a username and password, regardless of their physical location, whether or not they were using the site’s chat features, or viewing child pornography”). The NIT would then force the “activating” computer to transmit information back to the FBI, including: the IP address of the activating computer; the date and time the NIT determined the IP address; a unique identifier generated by the NIT to distinguish data from different activating computers; the type of operating system running on the activating computer, including type, version, and architecture; information on whether the NIT had already been delivered to the activating computer; the “host name” of the activating computer; the operating system used by the activating computer; and the Media Access Control (“MAC”) address of the activating computer. NIT Warrant ¶ 34. Magistrate Judge Buchanan approved the warrant and authorized the FBI to deploy the NIT for 30 days. See generally Id. She further granted a request by the Government to delay notice of the search “until 30 days after any individual accessing the [Playpen site] has been identified to a sufficient degree as to provide notice” under 18 U.S.C. § 3103(a)(b) and Federal Rule of Criminal Procedure 41(f)(3). Id. ¶¶ 38—41.
The Government began deploying the NIT on February 20, 2015, and continued to do so until March 4, 2015, at which time it took the Playpen website offline. Gov’t Resistance Br. at 2. On July 17, 2015, law enforcement obtained a search warrant for
II. LAW AND ANALYSIS
Defendants urge that all evidence discovered by virtue of and flowing from the NIT warrant must be suppressed. In particular, they argue: (1) the NIT warrant was issued in violation of Federal Rule of Criminal Procedure 41; (2) as a result of the Rule 41 violation, evidence obtained by use of the NIT must be suppressed; (3) evidence obtained as a result of the Iowa Warrants must also be suppressed because the probable cause supporting their issuance was derived solely from evidence collected by virtue of the NIT; and (4) no good faith exception is applicable to avoid suppression. The Government counters: (1) that the NIT warrant complied with Rule 41; (2) that even if Rule 41 was violated, suppression is not warranted; and (3) that the good faith exception applies in any event.
The Court notes that the NIT Warrant at issue in this case has resulted in a great deal of litigation across the country. The numerous district courts to consider motions similar to the present Motions to Suppress have reached varying conclusions on the legal issues at play. At least two courts have concluded that the NIT Warrant was unlawfully issued and suppressed all fruits of it. See, e.g., United States v. Levin, No. 15-10271,
A. Did the NIT Warrant Comply With Rule kl
The Federal Magistrates Act provides that “[e]ach United States magistrate judge serving under [the Act] shall have within the district in which sessions are held by the court that appointed the magistrate judge, at other places where that court may function, and elsewhere as authorized by law” certain duties, including among other things “all powers and duties conferred or imposed ... by the Rules of Criminal Procedure for the United States District Courts.” 28 U.S.C. § 636(a)(1). Federal Rule of Criminal Procedure 41(b) provides in relevant part:
Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district ... has authority to issue a warrant to search for and seize a person or property located within the district;
(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;
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(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district ■a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both ....
The Court finds, and the Government seemingly concedes, that neither Rule 41(b)(1) nor Rule 41(b)(2) authorized an Eastern District of Virginia magistrate judge to issue the NIT Warrant.
The Government urges that the NIT Warrant was permissible pursuant to Rule 41(b)(4), because the Defendants “logged onto [Playpen] from computers located in the Southern District of Iowa, which triggered the NIT during the time period that the NIT tracking device was active, which gathered identifying information, including an IP address, for each of the defendant’s computers.” Gov’t Resistance at 7. In support of its position, the Government cites Matish and Darby. In Matish, the court found that Magistrate Judge Buchanan had authority to issue the NIT Warrant under Rule 41(b)(4) because Playpen users made “a virtual trip via the Internet to Virginia.”
It is understandable why the government sought the warrant in the Eastern District of Virginia. The government planned to run the website from a server located in the district. No district in the country had a stronger connection to the proposed search than this district. Additionally, nothing in Rule 41 categorically forbids the magistrates from issuing warrants that authorize searches in other districts—most of its provisions do just that....
Rule 41(b)(4) allows a magistrate judge to issue a warrant for a tracking device to be installed in the magistrate’s district. Once installed, the tracking device may continue to operate even if the object tracked moves outside the district. This is exactly analogous to what the NIT Warrant authorized. Users of Playpen digitally touched down in the Eastern District of Virginia when they logged into the site. When they logged in, the government placed code on their home computers. Then their home computers, which may have been outside the district, sent information to the government about their location. The magistrate judge did not violate Rule 41(b) in issuing the NIT Warrant.
The Court finds Darby and Matish unpersuasive. The Court additionally disagrees with the Jean decision, which was decided after the Government filed its resistance brief. There, the court found that the NIT Warrant “did not violate Rule 41(b)(4)’s jurisdictional boundaries, because law enforcement did not leave the Eastern District of Virginia to attach the
The whole point of seeking authority to use a tracking device is because law enforcement does not know where a crime suspect—or evidence of his crime—may be located. In such instances, Rule 41(b)(4) allows a magistrate judge to authorize law enforcement’s use of electronic tracking tools and techniques. When an unknown crime suspect, or unknown evidence of his crime, is located in an unknown district, it would be nonsensical to interpret the Rule ... to require law enforcement to make application for such a warrant to an unknown magistrate judge in the unknown district. The fact that the NIT was purposely designed to allow the FBI to electronically trace the activating computer by causing it to return location identifying information from outside the Eastern District of Virginia—is not only authorized by Rule 41(b)(4), but is the very purpose intended by the exception.
A “tracking device” is defined for purposes of Rule 41 as any “electronic or mechanical device which permits the tracking of the movement of a person or object.” See Rule 41(a)(2)(E) (employing the definition of “tracking device” as set out in 18 U.S.C. § 3117(b)). Although the term “track” is not further defined, its ordinary meaning is “[t]o follow up the track or footsteps of; to trace the course or movements of; to pursue by or as by the track left.” See http://www.oed.com (last visited Sept. 19, 2016). The NIT here at issue, however, clearly did not “track” the “movement of a person or object.” Indeed, it did not “track” the “movement” of anything; rather, it caused computer code to be installed on the activating user’s computer, which then caused such computer to relay specific information to the government-controlled computers in Virginia. Thus, the plain language of Rule 41 and the statutory definition of “tracking device” do not, in this Court’s opinion, support so broad a reading as to encompass the mechanism of the NIT used in this case. See Torres,
Having rejected the position advanced by the Government, the Court instead agrees with the numerous district courts who have concluded that Magistrate Judge Buchanan lacked authority to issue the NIT Warrant under Rule 41(b)(4). In particular, the Court agrees with Michaud, wherein the court found that application of Rule 41(b)(4) to the NIT Warrant “stretches the rule too far”:
If the “installation” occurred on the government-controlled computer, located in the Eastern District of Virginia, applying the tracking device exception breaksdown, because [the out-of-state defendant] never controlled the government-controlled computer, unlike a car with a tracking device leaving a particular district. If the installation occurred on [the out-of-state defendant’s] computer, applying the tracking device exception again fails, because [the out-of state defendant’s] computer was never physically located within the Eastern District of Virginia.
B. What is the Remedy for the Rule 11(b) Violation?
“Rule 41 and the Fourth Amendment are not coextensive,” and “[n]oncom-pliance with [Rule] 41 'prerequisites does not automatically require the exclusion of evidence in a federal prosecution.” United States v. Schoenheit,
1. Constitutional violation.
Once a court determines that a Rule 41 violation has occurred, it must next “determinfe] whether that specific Rule 41 violation rises to the level of a Fourth Amendment violation.” United States v. Krueger,
Only the Levin and Arterbury courts have explicitly held that the Rule 41(b) violation in relation to issuance of the NIT Warrant was of constitutional concern. In Levin, the court reasoned that Rule 41(b) violations cannot be considered merely ministerial or procedural because
Upon careful review of the case law, this Court adopts the well-reasoned decisions in Levin and Arterbury and concludes that a warrant issued without proper jurisdiction is void ab initio and that any search conducted pursuant to such warrant is the equivalent of a warrantless search. See Levin,
2. Technical violation.
Assuming that the Rule 41(b) violation was merely technical, the Court would still find suppression appropriate in this case for the reasons articulated in Levin and Arterbury. As discussed supra, if the Rule 41(b) violation is considered non-constitutional, suppression is only warranted if Defendants were prejudiced by the violation or if there is evidence that law enforcement recklessly disregarded procedure. See Schoenheit,
The Government cites United States v. Wheelock in support of its assertion that Defendants could not have been prejudiced by the Rule 41(b) violation because they had no reasonable expectation of privacy in the specific information obtained by the NIT Warrant, i.e., in their IP addresses and other identifying information obtained from their computers. See Gov’t Br. at 10 (citing Wheelock,
Wheelock argues the use of an administrative subpoena (as opposed to a warrant) violated his Fourth Amendment privacy interest in the subscriber information obtained from Comcast. To prove he had a constitutionally cognizable privacy interest, Wheelock “must show that (1) he ‘has a reasonable expectation of privacy in the areas searched or the items seized,’ and (2) ‘society is prepared to accept the expectation of privacy as objectively reasonable.’ ” United States v. James, 534 F.3d 868 , 872-73 (8th Cir.2008) (quoting United States v. Hoey,983 F.2d 890 , 892 (8th Cir.1993)).
‘“[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.’ ” United States v. McIntyre,646 F.3d 1107 , 1111 (8th Cir.2011) (quoting United States v. Miller,425 U.S. 435 , 443,96 S.Ct. 1619 ,48 L.Ed.2d 71 (1976)). This principle is dispositive here. With Comcast in possession of his subscriber data, Wheelock cannot claim a reasonable “ ‘expectation of privacy in [the] government’s acquisition of his subscriber information, including his IP address and name from third-party service providers.’ ” [United States v.] Suing, 712 F.3d [1209] at 1213 [ (8th Cir.2013)] (alteration in original) (quoting United States v. Stults,575 F.3d 834 , 842 (8th Cir.2009)); accord United States v. Perrine,518 F.3d 1196 , 1204-05 (10th Cir.2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.”).
Wheelock,
It is clear in this case that neither the search pursuant to the NIT Warrant nor the searches pursuant to the Iowa Warrants would have occurred without the violation of Rule 41(b). Had Rule 41 been complied with, law enforcement would not have obtained Defendants’ IP addresses, would not have been able to link those IP addresses to Defendants through subsequent investigation and the use of administrative subpoenas, and would not have had sufficient probable cause to obtain the Iowa Warrants. Thus, Defendants have satisfied their burden to prove that they were prejudiced by the Rule 41(b) violation. Suppression is an appropriate means to deter law enforcement from seeking warrants from judges lacking jurisdiction to issue them, and this deterrence function outweighs the societal costs associated with suppression. Moreover, the Court finds that law enforcement was sufficiently experienced, and that there existed adequate case law casting doubt on magisterial authority to issue precisely this type of NIT Warrant, that the good faith exception is inapplicable. See Levin,
III. CONCLUSION
For the reasons stated herein, Defendants’ Motions to Suppress (Croghan Clerk’s No. 33; Horton Clerk’s No. 45) are GRANTED. All evidence flowing from and obtained as a result of the improperly issued NIT Warrant is hereby suppressed.
IT IS SO ORDERED.
Notes
. Throughout this Order, the Court will refer to the search warrant obtained in the Eastern District of Virginia (Croghan Clerk’s No. 33-2; Horton Clerk's No. 45-2) as the "NIT Warrant." In the affidavit filed in support of the NIT Warrant, the Playpen website is referred to interchangeably as "TARGET WEBSITE” or "WEBSITE A.”
. The Tor network "is a group of volunteer-operated servers that allows people to improve their privacy and security on the internet” by allowing users to connect to websites "through a series of virtual tunnels rather than [by] making a direct connection.” See https://www.torproiect.org/about/overview. html.en (last visited Sept. 12, 2016). Thus, the Tor network "prevents someone attempting to monitor an Internet connection from learning what sites a user visits, prevents the sites the user visits from learning the user’s physical location, and [] lets the user access sites which could otherwise be blocked.” NIT Warrant ¶ 8.
.The Court will collectively refer to the warrants executed at Defendants’ residences as the "Iowa Warrants.”
. See United States v. Leon,
. The Government's sole reference to the first two subsections of Rule 41(b) in its resistance brief is as follows: "Defendants argue that the NIT search warrant fails to satisfy Rule 41(b)(1) and (b)(2) because some of the computers searched by the NIT warrant, including those of defendants, were not located in the Eastern District of Virginia, where the warrant was obtained, and that the server which hosted Website A, although located in the issuing district, was not where the search occurred.” Gov’t Resistance Br. at 4-5. The Government makes no argument, however, that either (b)(1) or (b)(2) authorized issuance of the NIT Warrant. See generally Id. Rather, it focuses solely on Rule 41(b)(4) in support of its assertion that the NIT Warrant was properly issued. Id. at 5-7.
. In its argument that Defendants were not prejudiced by the Rule 41(b) violation, the Government urges that Defendants had no reasonable expectation of privacy in the IP addresses obtained by virtue of the NIT Warrant. Gov’t Resistance Br. at 10-11. This argument could reasonably be construed as implying that no warrant was required to obtain Defendants’ IP addresses, and thus, there could not have been a Fourth Amendment violation requiring suppression. See Matish,
. The Court fully recognizes that "[flor exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Davis v. United States,
. The Government additionally cites Michaud,