Alaska case USA v Schweir gets government to dismiss all charges which would have required disclosure of...

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Alaska case USA v Schweir gets government to dismiss all charges which would have required disclosure of the investigative software used by the government to visit the IP address of computer user later charged with child pornography possession who were detected by the investigative software.

The initial declarations by the expert witnesses involved software called eDonkey –a torrent client—and the investigative tool apparently identified by the government as Roundup eDonkey. Both the defense expert witness and the government’s lawyers and the judge of the court abandoned all pretense that there was any such thing as Roundup eDonkey and took to writing about “Roundup Torrential Downpour” or just “Torrential Downpour” which is alleged to be one of a suite of tools denominated "Round Up Suite" used by the government to investigate those who use torrents to transfer information on peer to peer networks.

The lack of verification of the Roundup Torrential Downpour software was a key issue in the case in Alaska where all this took place. The allegation that there may very well be bugs in the Roundup Torrential Downpour software which led to misinformation and incorrect conclusions by the agents of law enforcement in the Alaska case was at the center of the request by the defense to obtain an installable copy of the Roundup Torrential Downpour software. After agreeing to a protocol to satisfy the court order for providing access to the defense experts for testing the government had a change of position and refused to perform in accordance with the agreed protocol and dismissed the cases which arose from investigations using the Roundup Torrential Downpour software.

Torrents by their very nature employ a distributed group of sources for loading a requested file. The Roundup Torrential Downpour software is claimed by the government to enable the investigating computer to connect with the subject IP Address and upload the entire contraband file from that single source. Unlike traditional torrent client programs, the government claims that Roundup Torrential Downpour downloads files only from a single IP address – rather than downloading pieces of files from multiple addresses – and does not share those files with other torrent protocol users. This is called a “Single Source Download” by the authors of the software. Of necessity this involves altering the way in which torrent client software runs on the targeted computer (targeted IP address). If the investigative computer and the Roundup Torrential Downpour software can alter a setting or characteristic of the torrent client software operating on a targeted computer (targeted IP address) then why is there any reason to think or believe that the Roundup Torrential Downpour software will stop at changing just one characteristic or one switch. There is simply no telling what alterations the Roundup Torrential Downpour software makes to thetargeted computer (targeted IP address). If the government and the Roundup Torrential Downpour software can make changes to the hardware which the government alleges to be in the exclusive control of the accused without being detected, then others may make undetected changes in ways either similar to or different from the manner in which the government accomplishes the task.

The allegation by the government that the software has detected the accused in illegal conduct effectively makes the software a witness against the accused. The government’s position that the software functions correctly to do what it is designed to do and you will just have to trust your government when told that denies the accused the right to confront and cross-examine the witness against the accused.

There are at least three versions of the Roundup Torrential Downpour that have been used. Parenthetically it may be asked why have there been versions of the software if it has always been foolproof? If it has always worked as it was designed to work? Inquiring minds want to know if there were bugs detected and patches and remedies applied. There are operating manuals for each of the versions of the Roundup Torrential Downpour software which have only been produced in heavily redacted format. If there is a matter in which the operation of the investigative computer and the software running on the investigative computer is important to the accused getting the information on the exact version of the software and the instruction manual for that version of the software are critical for complete evaluation of the facts.

This writing does not address the disclosure or lack of disclosure of the “pooled information” that enabled the government to focus on the IP address later determined to be associated with the accused which may prove to be an equally fruitful source of inquiry.