Ninth Circuit Aligns With Other Circuits: The FBI's Playpen Warrant Was Bad, But The FBI's Faith Was Good

from the winning-by-losing dept

The Ninth Circuit Court of Appeals is the latest appeals court to find the FBI’s warrant for malware deployment during a child porn investigation to be invalid, but still close enough for government work. The FBI’s NIT (Network Investigative Technique) was sent to visitors of a dark web child porn site called Playpen. The hitchhiking software then traveled out of the district the server was housed in (Virginia) to send back identifying info from computers and devices all over the world.

At the time the warrant was sought, warrants were only valid in the district they were issued. Multiple courts found the FBI’s malware was a search under the Fourth Amendment. A smaller subset found the extrajurisdictional search unsupported by current law and the underlying warrant invalid from the moment it was issued. Challenges to the extrajurisdictional searches have all run into dead ends at the appellate level.

The First, Eighth, and Tenth Circuits have all refused to suppress evidence, even if the courts found the search warrant invalid. The reasoning? There was no deterrent effect served by suppressing the evidence because the law changed after the warrant was issued and the malware deployed to allow the FBI to engage in extrajurisdictional searches. In essence, this is retroactive application of a law that changed after the warrant was sought, giving it the sort of blessing courts won’t extend to victims of law enforcement misconduct that happened to occur before precedential decisions explicitly declared that particular form of misconduct unconstitutional.

In addition to the retroactive application of Rule 41 jurisdictional changes, these appeals courts have also granted the government “good faith.” Somehow, it’s believed an FBI agent seeking a warrant for a search that he knew would violate Rule 41 limits when executed wasn’t the FBI rolling the dice on favorable rulings and a potential future mooting by changes to the law.

There’s more of the same in the Ninth Circuit decision [PDF]. The court says the warrant was bad but the faith was good, so no harm, no foul, no suppression. (h/t Brad Heath)

We agree with Henderson that Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge’s authority to act in this case.


The Federal Magistrates Act, 28 U.S.C. § 636, defines the scope of a magistrate judge’s authority, imposing jurisdictional limitations on the power of magistrate judges that cannot be augmented by the courts.


Relevant here, § 636 authorizes magistrate judges to exercise “all powers and duties conferred or imposed” by the Federal Rules of Criminal Procedure. 28 U.S.C. § 636(a)(1). In turn, Rule 41(b) has been asserted as the sole source of the magistrate judge’s purported authority to issue the NIT warrant in this case. But, as we have explained, in issuing such warrant, the magistrate judge in fact exceeded the bounds of the authority conferred on magistrate judges under Rule 41(b). Thus, such rule plainly does not in fact confer on the magistrate judge the authority to issue a warrant like the NIT warrant. Without any other source of law that purports to authorize the action of the magistrate judge here, the magistrate judge therefore exceeded the scope of her authority and her jurisdiction as defined under § 636.

Thus endeth the bad news for the government — bad news severely tempered by the fact the government still gets to keep its evidence. Even though the court recognizes the warrant was invalid the moment it was signed, it still gives the government points for effort. The Ninth says it’s ok for law enforcement to rely on invalid warrants, so long as they’ve been signed by a magistrate. And good faith or not, the court says there’s no reason to suppress the evidence because the house always wins there’s no future misconduct to deter.

[T]here is no evidence that the officers executing the NIT warrant acted in bad faith. “To the extent that a mistake was made in issuing the warrant, it was made by the magistrate judge, not by the executing officers.”


Further, suppression of the evidence against Henderson is unlikely to deter future violations of this specific kind, because the conduct at issue is now authorized by Rule 41(b)(6), after the December 2016 amendment. The exclusionary “rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations,” Davis v. United States, 564 U.S. 229, 236–237 (2011), and we see no reason to deter officers from reasonably relying on a type of warrant that could have been valid at the time it was executed—and now would be.

With four circuits weighing in and reaching the same conclusions, it seems unlikely any further appellate challenges will upset the FBI’s malware apple cart. And if the same conclusions continue to be reached, there will no compelling reason for the Supreme Court to weigh in. Add to that the post-facto codification of the tactics used by the FBI in this investigation and you’ve got dozens of unconstitutional searches being laundered into Fourth Amendment compliance by courts unwilling to penalize the FBI for overstepping its bounds.

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Comments on “Ninth Circuit Aligns With Other Circuits: The FBI's Playpen Warrant Was Bad, But The FBI's Faith Was Good”

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That One Guy (profile) says:

Grow a spine or get out

The various courts/judges handing out these rulings either need to have the guts to admit openly that they consider warrants entirely optional, nice to have but not actually necessary, or find that a valid warrant is in fact needed and therefore anything resulting from an invalid one is barred from use in court.

By finding that the warrants weren’t valid but accepting the evidence resulting from them anyway the judges are trying to have it both ways. ‘You violated the law but… you still get all the benefits from doing so and no penalty.’

Either have the guts to tell those with a badge, even a very shiny badge with ‘FBI’ on it, that the law is not in fact ‘optional’ and violations of it carries penalties, apply the standard they are using to everyone, those with and without badges, or get out and let someone competent who actually cares about the law to do the job they clearly can’t/won’t.

Bamboo Harvester (profile) says:

Re: Grow a spine or get out

One of the basics for Ex Post Facto violations is that the Rules of Evidence may NOT be changed after the crime was committed.

I see what the Courts are doing here, they’re trying to prevent every single warrant signed by that magistrate, those cops, that jurisdiction from being revisited.

Forget the 4th Amendment – it’s not the governing authority here.

Article One, Section Ten of the US Constitution is. And the Rules of Evidence change are a direct violation.

“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

Note that it applies to the States, NOT the Federal Government, so they may be trying to do an end run around the Constitution on that basis.

Anonymous Coward says:

Re: Re: Grow a spine or get out

Your comment is complete idiocy. They are trying to suppress evidence because they failed to fulfill 4th Amendment requirements.

The court is using an illegal excuse called “good faith” to allow the evidence that was collected to remain valid so that it can be admissible.

The Federal Government is more bound by the Constitution than any other government entity because when the Constitution was originally created, it ONLY APPLIED to the fucking federal government back then. It was not until the inclusion of things like the 14th amendment where people started the idea that the Constitution now applies to the States. How do you think Sheriffs were able to take people’s guns away when they went into town despite there being a 2nd Amendment?

But morons are going to moron anyways.

Bamboo Harvester (profile) says:

Re: Re: Re: Grow a spine or get out

The “good faith” claim they’re making to allow the warrant is, IN ITSELF, Unconstitutional because of the change in the Law that makes it legal NOW.

Ex post facto laws are specifically forbidden. That includes changing the Rules of Evidence. Which is exactly what was done, and what their “good faith” rests on.

ShadowNinja (profile) says:

Re: Grow a spine or get out

I think it’s more like we need judges willing to stand up for the most vile of the accused, aka pedophiles.

I think a very applicable comparison here is the red scare in the US under Senator Joseph McCarthy. In his era the mere accusation (without proof) of being a communist was enough to pretty much destroy your life and turn you into a pariah. That was why his committee of Unamerican activities was so dangerous and ruined so many lives.

Joseph McCarthy got away with his crap for so long because no one was willing to stand up for the communists and say “this is a clear violation of the 1st amendment. It’s not illegal to advocate for communism”. And because of that many non-communists got their lives ruined.

The same is happening here. No one is willing to stand up for the rights of hated pedophiles and say that their evidence is clearly inadmissible under the 4th amendment, so we’ll all suffer for it in the long run from that precedent.

Chris Brand says:

why is exclusion tied to this particular abuse of a warrant?

Ok, so the rule says that the only reason to exclude evidence is to deter future 4th amendment violations. You can argue about whether that makes sense or not, but let’s assume it’s fine.

But why say “excluding the evidence wouldn’t deter *this particular kind of abuse*” rather than “excluding the evidence may make the FBI more careful when drafting warrants, and thus deter future 4th amendment violations”?

Anonymous Coward says:

Re: why is exclusion tied to this particular abuse of a warrant?

But why say "excluding the evidence wouldn’t deter this particular kind of abuse"

Because of the four most dangerous words in the mouths of politicians and law enforcement:- "Think of the Children"; which can excuse all sorts of short cuts, rights trampling, censorship, and making third parties evil law breakers.

quercus says:

I’m thinking about the argument that suppressing the evidence wouldn’t create any deterrence because the particular rule the FBI violated has since been changed, and so the FBI can’t break that rule (in this particular way) again in the future. But isn’t deterrence about teaching the FBI not to break any rule, not just this particular one?

In other words, it seems to me, that by the court’s argument there’s no deterrence from punishing a murderer, because after all, they can’t kill the victim again in the future.

Anonymous Coward says:

Good Faith exception...

does this exception exist when people feel that they are about to be tried unfairly in court and asking their friends and family to burn the court down so they can escape an “unfair” trial where the court, prosecutors, and law enforcement regularly are found in violation of the Constitution?

If the Government is allowed to break the law on “good faith” why are citizens not allowed? This is what Tyranny looks like.

I C Thruitt says:

@ "unsupported by current law" -- NO, a mere Court Rule.

You are FLATLY WRONG that was some violation of black letter Law.

Just hover your mouse over the links: Techdirt (also) previously stated that was a MERE Court Rule, NOT The Law as such.

There’s NO contest over the evidence, NOR law as such, ONLY the Court Rule. It’s extreme legalism to claim these persons should be let off.

In fact, FBI properly sought warrants in good faith and no one foresaw the consequences of the Internet that some would likely be outside the physical boundaries of whatever court. Actually, of course the whole United States is one Federal jurisdiction, and the Internet TOO. It cannot work any other way. (So long as are nations, and Masnick IS a Globalist who wants to end national borders. His position on topic is entirely consistent with that.)

By your notions, NO technology as required for the Internet could be used without search warrants in every possible jurisdiction. That is stupid, but typical of the overweening legalism that you favor.

Your legalisms always favor the admittedly guilty, trying to get them off on sheer technicality. But shielding the guilty is not the purpose of Law. This is LONG established principle. Just seems new to you kids who watch TV and think that technicalities can get you off even if outright criminal. Don’t try that in Court, judges see right through it.

Continuing rants on this actually shows you favor child pornography. If had your way, it’d be easy to dodge the law so long as bad luck didn’t land you in same physical jurisdiction with the server.

Now, Masnick: FOUR Circuit Appeals Courts have agreed. The lower courts got it wrong, but not with bad intent, either, surely knowing would go on up out of their authority to change the Court Rule and be clearly resolved. — But how many more times are you going to claim that actual Federal Judges are entirely wrong and you’re right that downloaders of child porn should be let off on a mere Court Rule?

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