of the federal defenders for mr castro your honour's the agent in this case misled the judge and issuing the search warrant the agents swore to the judge that her agency had downloaded child pornography from mr castro's computer but the agent knew and omitted that she had looked for any such download and found absolutely nothing she said i'm sure i tried to find it and wasn't able to find the folder containing the downloaded files district judge chin said saying that a fact is true despite knowing that there is reason to doubt is true is evidence of recklessness the government ignores the perez case which this court in which this court endorsed in the courageous decision and these are all set out in our br besides making the reckless assertion the agent also made a number of admissions besides omitting that she looks for these allegedly downloaded files and found nothing she also admitted the fact that what she said were the file descriptions came  from her viewing anything that she had obtained from mr castro but rather from her viewing files in an internal d h s database she also admitted that the only basis she had for seeking this warrant application was the website's allegation that her system had downloaded the files and just just to try to break it down because i myself was trying to understand the technology in this case when i first got the appeal basically what happens is this do you just use a software program round of aries and it goes on to public spaces of peer to peer networks and it looks for potential contraband if it finds it it downloads the files to a d h s computer for further review now that this round of every system has been validated has been tested for reliability and in fact the judge here there was evidence that the d n a that the round up areas system was reliable that's not the system that the asian relied on with the age relied on here was a third party website a website developed by a retired police officer a website that is not a piece of d h as technology and a website that is separate from the areas around official who is if you have it fairly called a law enforcement report is as to whether he charges or not i'm not sure but it's a service that he decided he would try to provide and the idea of this website is to say when the area is round a program actually does download suspected  values but all of the hash values are or descriptions of the content of the file so this alert said it's unique in the same way that the title of a novel is unique there can be multiple copies of l but you got suspected contraband as opposed to something innocuous so when the agent went to her own computer to actually see if in fact she had mail she found nothing she withheld this fact from the judge she c why because if you look at a hash well you don't know what it means it's a long string of numbers and letters it's not apparent what it is so you have to look it up to see what it relates to so she looked up at her own database and she found that it corresponded to elicit material namely the website proved apparently unreliable and we set out a number of hypotheticals in our brief to try to it was unreliable not as an inaccurate but in this instance it didn't download the files according to its ordinary functionality right it's not your claim that the hash values weren't accurately reported right well actually our claim is we place no stock in this alert because the alert said you have mail and when the agent went to see whether she did she found  as to the contents of that mail we can place no start another allegation either because the the primary assertion here was that a download it happened when she looked to see if one actually did she found nothing so as to what the contents of that download might be we certainly place no stock in it so we should pay no attention to the fact that it turned out to be accurate i don't know that it turned out to be accurate your honor i don't know that those files were ultimately found and if they were of course it would be immaterial because corrected to say exactly what in fact did happen with all these linkages with can't you pretty complicated than that you would not support a figure of probability that evidence of a crime that's right you're on one corrected it doesn't this is like any other situation where a source makes a police source makes an allegation of criminality in this case however the allegation criminally was investigated found unsubstantiated the fact that the allegation and to answer your honor's question the fact that values corresponded to contraband rather than illicit internal is beside the point let me give an example the source comes to the cops and says my neighbor is dealing drugs in his house the cops investigate the surveil the house this is much like natalee case in our brief that it has no motivation to lie but it certainly may have the possibility for error that's another critical piece of information in this case unlike in thomas where the piece of software at issue had been thoroughly tested vetted and found by the judge after frank's hearing to be reliable and not prone to any wrong use information there was no such evidence proffered in this case despite our saying several times below this seems to be inaccurate because what the agent clear she did not go into a round of berries the software program and all the library is simply a library of of images and that they maintain she had to type in the numbers in order to see whether it's contraband right so she software program which the third party website which has never been validated and which you're saying though is if i understand it that as judge jacobs is saying she got the hash values from the website and word merrily and she represented that there was a download as well this in this instance there was not the download as well but there were the hash values she went to another website to determine what was the content of the documents referenced by the hash values so in this instance there was some thing other than the ordinary functionality but as to jacobs is saying it corrected affidavit that disclosed that were nearly there is a download in this case there wasn't but there was the ordinary transmission of the hash values which turned out to reference contraband why that would not have been an adequate basis for the issuance of the search warrant it's not for the same reason if a source says my neighbor is dealing know that could be a source again i would adopt judge sachs skepticism that an individual person is a source or temporary than something over from the operation  computer and something with no motive to lie but with room for error a drug dog let's say a drug dog alerts to a particular car the car searched no contraband despond you wouldn't then say to a judge oh i want to search the car because the drug dog alerted to there being contraband in it as opposed to something licit what if in this computer program instance there are two elements of its functionality one is disclosure of the hass values the other is a nice additional feature but not necessary feature download right here as opposed to it to save you the trouble of having to go to the d h s website why isn't just the hash value sufficient because again all of the hash values are or description of the alleged download of contents so it's saying not only do you have mail not only has something been downloaded to your computer but specifically here's what was downloaded here the images that were downloaded and they happen to be contraband but again when when an officer investigates an allegation of criminality as in this case and finds the allegation to be unsubstantiated in here that there's no download at all the fact that the download was alleged to contain illicit material rather than listen material does not provide a sound basis for concluding that there's probable cause to search please the court judge scofield's decision to deny the motion to suppress to deny the motion for reconsideration and to deny the motion for a new trial should be affirmed i don't actually want to start talking about the technology just to make sure it's very clear how this works round up barry's is a investigative software tool that goes on to peer to peer networks and automatically looks for files that are known to be suspected child pornography the way the program knows which files to look for is a hash value hash oil is not a title to a novel it's a unique identifier in any two files that have the same hash value  necessarily identical multiple witnesses testified to that with expertise during the trial when roundup areas detects a file that's being made available by a user of a peer to peer network it automatically attempts to conduct a download from that ip address if a download is successfully conducted it is then that round up barry's is programmed automatically to send a message to i care cops which is a database that only law enforcement can access and that message says what this document that's in the record says aries download completed and the only record evidence about what this those words actually mean come from the creator of i care cops and he testified in means that the download by round up areas occurred at the hash value that's listed here is a unique identifier if an agent finds a file in their own library that's identical to the hash value that's in this report those are review written law enforcement reports what written law enforcement reports prepared by who or what was being referred to as judge schofield found the eye care act report it's a written law enforcement report it's a tool that was designed for law enforcement similar to the thomas case the thomas case the c p s tool that was issued in the thomas case is only designed for law enforcement and this court ultimately decided that in thomas that the fact that yes it was a created by third party rather than created by a government entity is immaterial i would also think that a magistrate judge would even if you grant every permutation of the defendant's arguments that says that a download happened and that an agent actually went and did look at these files themselves by conducting a hash value analysis which is what the agent did in thomas i would also note i download itself is not even required under thomas all that's required is that the ip address is making file vailable for sharing in the first place so you need something do you know don't you need some showing of reliability of the system of its use in the past i mean that if it weren't  application here was very bare bones and there were significant omissions and this was likely a function misfunction in the absence of the downloads that create some question about whether it was malfunctioning in some way whether there was a reliable according to its ordinary function why should we require more of an agent seeking to x to access someone's computer for most of all  as was stated in thomas this is really a type of function that aggregates information automatically scans and this court drew the distinction between these types of computer programs and drug sniffing dogs is really that they aren't the same because with a drug sniffing dog you need to actually functions random theories and cops relate to each other they're not like totally separate things respectfully so the message areas down low complete in you know it's not just coming out of the ether or it's not just some random third party website that's a message that has detective literally testified comes from the round up areas program that is described in some depth in the affidavit this is just a written printout of a piece of information that round up areas is automatically programmed to send care cops i cop says areas down low completed it reflects hash values i went to look for the downloads i was not able to find them nonetheless i looked at the hash reflected in this report and concert and satisfy myself the child pornography under thomas that's sufficient to provide probable cause because in part this court doesn't require downloads and secondly you can take a written law enforcement report like this that yes is generated by a third party provider just like the c p s tool you can rely on it and you can then go and look at the files but just the mere fact that the government could not actually find the files does not in of itself mean that the damage never happened does it refine to you that there was no misleading and that's reviewed for clear error your honor and church cofield had the benefit of actually personally observing the testimony of a special agent born at trial on these very questions when she made that finding in denying the motion for a new that's entailed to some deference is almost a perverse question or you're here and we see so many of these cases rather disturbing and there's a certain sum among them and when i can't understand is with a child pornography and not get caught if everybody's watching so in answer to that is the exception and that you all i can say is what was in the record your honor which is that there are numerous investigative tools out there that automate the functionality i would just also on the question of agent born state of mind that is reviewed for clear error it's entitle to deference i would know if you know agent born to not given that the standard is you don't even have to say that downloads occurred to prove problem cause that is relevant to her state of mind agent born could have said i five see that this ip address is making files available for sharing i looked at the hash values that would have been enough and as as judge schofield correctly found yes there were omissions but there's no indication that those emissions were intentional agent borne testified i believe the iconic report is something i can rely on it says areas down the completed her belief was she could take it to the bank to take it early is the only person who testified about what this all really means and he created icac ops he had no uncertainty areas down the completed means that the download happened is exactly what he testified to party private provider which might be of less presumptive validity in reliability why am i wrong about that thomas was it was a third party tool created for law enforcement and what the functionality that was used in that case did was it scanned peer to peer networks to show oh this ip address is making this file with this hash value available is aggregating publicly available information that's how the second circuit described it that's really no different than this case what with this program the berries does is it looks for files of known child pornography attempts to download them and then yes it sends a message to this database that's used by law enforcement that's that communicates that the download happened but the round up subject to bugs of different kind or another it's sure it's hypothetically possible but asian born had no reason to believe that this tool which is used many times wasn't reliable and that mere at the fact that the record evidences that the program was designed to automatic round up areas was designed to automatically send a message to icac ops saying when downloads happened yes she didn't find the downloads that is true but that in and of itself does not call into question the entire reliability of the entire system that last point your honour's the agent had a glaring lee obvious reason to think the website was not reliable because the download that it claimed occurred could be found nowhere on her system she might have just not been a very good searcher also well the evidence to the contrary your honor because she testified that her normal practice was when she does get an alert from the website she will go to her computer on the d h a system and see if in fact the download occurred and then to look at the files themselves she said i would have done that here the reason i didn't do it here is because i couldn't find the download and that's why i went to our internal library and just looked up the names of these files that have no moment that was i guess a couple of months later that she went to look for that there's really no evidence your honor that the time lapse isn't all material in this case there was no evidence put in that oh from time to time we delete files in these files were included in the bridge nothing like that was offered if there had been such evidence this might be a different case but here the government had every opportunity to explain this discrepancy in a field to do so not only did the government fail to do so the agent chose to disclose it to conceal it from the judge and i just want to make three final points in closing to address what i think three you say conceal him and she just didn't disclose it conceal the fact that it despite swearing a download had occurred she looked for the download and found nothing that is a fact that any reasonable judge want to know when a judge is being asked to grant a search warrant for someone's home and the only thing the agent relying on appears to be for as far as human investigation can tell unreliable three questions that your honour's a reason that i just want to address briefly rebuttal first why are the hash values not enough well the inventor of the website said are not enough mr early who invented this website that the agent relied upon exclusively when he asked if all of you had if all you had was this alert that a download would occur would you seek a warrant from a judge and this retired policeman said no i train officers in using this that this is simply a de confliction tool it's a tool designed to make sure that multiple agencies are pursuing the same suspects it is not a tool that sets a probable cause what does establish probable cause is concrete evidence that the individual access to contraband such as downloaded files or evidence of an attempted download would poised on again i just want to be very clear and i want to analogize because i know for my own purposes the technology is a bit opaque just to analogize very clearly imagine we're back in the days when communist or other literature was contraband in this country and there's an allegation someone tells the police or they receive a note in the mail that person x has such contraband lover or any other number of banned books the officer then goes to the police mailbox there's nothing there oh this alleged download this alleged obtain a new country when there's nothing really here but wait what was allegedly delivered to the police office was illicit i can go into my library and look up the names of these books and realize that they're illegal in their country and therefore i'm going to go to a judge i'm not going to tell the judge that i looked in the police mailbox and found nothing i'm simply going to tell the judge someone said that contraband from person x was delivered to the police station i'm not going to disclose that that didn't really happen all i'm going to tell the judge is that it was deliberate and that  contraband and list the names of the specific books which are illegal and i'm going to ask for a warrant to search that person's home now if that warrant application had been corrected to say what the truth really was namely all right this person  contraband which is come into police possession but when i look to see if we really have it i could find nothing no more in with issue the fact that the hash what reason did the inventor give for saying the hash tag would not be sufficient he did not ha value he did not give a specific reason but the larger reason was that he designed the website again as a de confliction tool and the website does not as my colleague was talking about the website is not the software program how does it go off into the vast internet and and and find these particular mice the well you know how does the website come to give an alert how does it yes how does it get my first book the testimony was that the round  areas program part of the design part of the design of the website was that when the download is completed an alert will be sent to the web site now that's what it was designed to do it comes it comes from the the order comes of like tribally from the internet it does not come from another law enforce it is that's what it's designed to do your honor and again i don't want to get i don't want to put too much faith in computers and technology before we hand over our fourth amendment rights because the computer said so i think it's very important to know that the technology we rely on is reliable what in thomas there was a frank's hearing where the judge looked at the software in question and found a reliable here not only was there nothing like that but even if there had been evidence and this is the larger point your honour's even if there had been evidence that this website in the past had given accurate alerts like my colleague says the officer had relied on it before we don't know if she relied on it accurately or not but she had at least relied on it even if there had been evidence that it worked reliably reliably in the past that does not clear clear up the glaring problem in this case and again this is a very narrow case i'm not asking for a general ruling that this technology can never  to investigate alleged criminality all i'm saying is that on the record here the website said you've got mail the police go to their mailbox they have no mail nothing oh that's odd right that's odd if you know the machinist the website is telling might have something but i don't do you think that's something the judge would want to know and if the judge didn't know that if you had reason to doubt the reliability of the lawyer in this case why would you place any stock in the fact that what it was was a download of illicit rather than listen material again if you're saying the man is growing pot next door versus running a daycare center that's neither here nor there what matters is whether there's concrete evidence establishing probable cause that there's contraband on thank you both will reserve decision