Yet Another Court Says FBI's Hacking Tool In Child Porn Case Was An Illegal Search

Just last week, we wrote about another ruling in one of the many cases kicked off when the FBI took control over a Tor-based child porn site, called Playpen, and ran it for two weeks. While the courts have said that it was okay for the FBI to run a child porn service for two weeks as part of a sting operation, they've been having a lot more trouble with the fact that the FBI then used its control over the service to infect any visitor with malware in order to figure out who they were. In the ruling last week, in the case against Alex Levin, in the Massachusetts District Court, the court said that the malware/hacking tool represented an illegal search under the 4th Amendment and suppressed the evidence. The key issue was that the warrant was issued for searches in the Eastern District of Virginia, but Levin clearly was not there.

Now a court in the Northern District of Oklahoma, in a case against Scott Arterbury, has more or less reached the same conclusion. Specifically, Artebury's lawyers pointed out that his computer was "seized" by the malware (called the Network Investigative Technique or NIT), and that was clearly in Oklahoma, beyond the bounds of the warrant. The government tried to play some games, arguing that it was the data that was seized in Virginia when it accessed the FBI-hosted site. The court doesn't buy it. The NIT acted in Oklahoma, not Virginia:

The Court is not persuaded by this argument. The property seized inthis instance was Arterbury's computer, which at all relevant times remainedin Oklahoma. The NIT warrant allowed the Government to send computer codeor data extraction instructions to Arterbury's computer, wherever it waslocated. The Government "seized" that computer and directed it to send certaininformation to the Government - all without Arterbury's knowledge orpermission. Arterbury's computer was never in the Eastern District of Virginiaand subsection (b)(2), therefore, does not apply. Furthermore, even if theproperty seized was electronic information, that property was not located in theEastern District of Virginia at the time the warrant was signed. Thisinformation only appeared in Virginia after the Warrant was signed andexecuted and the Government seized control of Defendant's computer inOklahoma.

None of this, of course, is to absolve those who were actively engaged in activities around child pornography. But, as the judge notes, the FBI could have easily gotten an appropriate warrant:

Furthermore, the drafters of Rule 41 knew how to avoid the territoriallimit on issuance of warrants when they wished to do so. Rule 41(b)((3)removes the territorial limitation in cases involving domestic or internationalterrorism. In such cases, a magistrate judge "with authority in any district inwhich activities related to the terrorism may have occurred has authority toissue a warrant for a person or property within or outside that district." Rule41(b)(3). The drafters of Rule 41 could easily have included child pornographyin Rule 41(b)(3) and, thereby, avoided the territorial limitation of Rule 41(b)(1)& (2). They did not do so. The Court can only conclude that they did notintend to remove the territorial limit in cases such as the one before the Court.

The court then delves a bit deeper to determine if it should order the evidence suppressed. Even in some of the other cases where the court found the NIT to be an illegal search, it still allowed the evidence to be used, often because of the "good faith exception." But not here. After a long discussion about the good faith exception... the court explains it just doesn't apply here, because this wasn't just a technical error, but an error that destroys the entire warrant.

I conclude that where theRule 41 violation goes directly to the magistrate judge's fundamental authorityto issue the warrant, as in the violation presented here, it is not a "technicalviolation" of the Rule. The warrant is void ab initio, suppression is warrantedand the good-faith exception is inapplicable.

Once again, it's looking like the FBI and DOJ's failure to respect the 4th Amendment means that evidence will be suppressed.

Permalink | Comments | Email This Story