The SVSU professor charged with possessing child pornography on a personal computer now is seeking to have the evidence against him suppressed.
In a motion filed last month, the attorney for English professor Jason Kahler argues the warrant used to find the pornography on his personal laptop was obtained illegally.
U.S. District Judge Thomas L. Ludington is set to hear oral arguments on the motion on Feb. 9 in U.S. District Court in Bay City.
Because of sensitive information included in the motion, Ludington on Friday, Jan. 20, sealed the motion and its contents.
The motion, filed by attorney Kimberly Stout, asks Ludington to suppress evidence that FBI investigators obtained through a search warrant dated Feb. 20, 2015, in Virginia.
In connection with the investigation, Kahler faces a federal felony count of possessing child pornography involving a prepubescent minor or a minor who had not attained 12 years of age.
The charge carries a maximum possible penalty of 20 years in prison.
His trial, once scheduled for Jan. 17, was postponed to a later date.
SVSU in August suspended Kahler without pay and banned him from campus once FBI officials informed school officials of the investigation.
“The criminal investigation found no evidence that Kahler used an SVSU computer or SVSU’s network for any illegal activity,” SVSU spokesman J.J. Boehm has said.
Now, it is that FBI investigation that Kahler, through Stout, is trying to attack.
“On Feb. 20, 2015, a warrant was signed in the Eastern District of Virginia authorizing the FBI to engage in an unprecedented computer hacking operation to sweep up information about computers used to log in to a Tor-based website named Playpen,” Stout wrote in the motion.
According to Stout, the technique used to access Playpen involved “modifying the code of a website hosted on a computer server … to cause any computer logging in to the website to download certain software. That software then sent information about the computers to the FBI.”
The Playpen investigation resulted in hundreds of criminal prosecutions that are currently working their way through the federal courts. Because of the nature of the alleged crimes, some feel that little attention has been paid to the potential legal questions surrounding how the investigation was carried out.
Stout added that the locations of the computers that logged in to the targeted website were unknown when the FBI applied for the warrant.
At least two courts have already concluded that the same warrant from Virginia is invalid and have suppressed the evidence because it “exceeded the territorial limits on the magistrate judge’s authority.” Additionally, other courts have reached the same conclusion in terms of warrants exceeding jurisdiction limitations.
Stout wrote that “the Virginia warrant and supporting affidavit contains material omissions, in particular, the Homepage had changed before the warrant was issued as it no longer appeared to be a child porn site. However, the FBI did not indicate that, thus misleading the Magistrate into believing accessors to this website would know from the Homepage that it contained child porn.”
Stout now is pushing for all evidence obtained from the search of Kahler and his laptop to be suppressed under the fruit of the poisonous tree doctrine.
“The federal government is crossing the lines of infiltrating websites and accessing computers without specific warrants,” Stout told ABC 12 in November.
