December 4, 2008
This criminal matter is before the Court to consider the Report and Recommendation of the United States Magistrate Judge dated November 7, 2008. [Doc. 84]. The Magistrate Judge recommends that the defendant's motion to dismiss the first three counts of the indictment, based upon the premise that the defendant provided a "remote computing service" to the public and that he had no duty to monitor the content of any electronic communications, be denied. The defendant has filed objections to this report. [Doc. 100].
After careful and de novo consideration of the Report and Recommendation of the United States Magistrate Judge, the defendant's objections to that Report and Recommendation, the defendant's motion to dismiss, the response of the government, the transcript of the hearing held on November 6, 2008, and for the reasons set out in that Report and Recommendation, which are incorporated by reference herein, it is hereby ORDERED that this Report and Recommendation is ADOPTED and APPROVED, and that the defendant's motion to dismiss is DENIED. [Doc. 40].
In the alternative, the defendant requests that the Court charge the jury in regard to the duties of a "remote computing service" provider. The defendant shall file these proposed instructions with supporting authority no later than 12:00 noon on Thursday, December 4, 2008.