Appeals Court Says An IP Address Is 'Tantamount To A Computer's Name' While Handing The FBI Another NIT Win
from the [extremely-superintendent-chalmers-voice]-good-lord dept
Fortunately, this profoundly-wrong conclusion is buried inside a decision that’s merely off-base. If it was the crux of the case, we might have witnessed a rush of copyright trolls to the Eleventh Circuit to take advantage of the panel’s wrongness.
But this decision is not about IP addresses… not entirely. They do play a part. The Eleventh Circuit Court of Appeals is the latest federal appellate court to deny suppression motions filed over the FBI’s use of an invalid warrant to round up suspected child porn consumers. The “Playpen” investigation involved the FBI seizing a dark web child porn site and running it for a few weeks while it sent out malware to anyone who visited the site. The FBI’s “Network Investigative Technique” (NIT) sent identifying info back to the FBI, including IP addresses and an assortment of hardware data.
As the court notes in its decision [PDF], pretty much every other appeals court has already gotten in on this action. (Spoiler alert: every other appeals court has granted the FBI “good faith” even though the DOJ was actively pursuing a law change that would make the actions it took in this case legal. The violation of jurisdiction limitations by the FBI’s NIT was very much not legal when it occurred.)
By our count, we become today the eleventh (!) court of appeals to assess the constitutionality of the so-called “NIT warrant.” Although the ten others haven’t all employed the same analysis, they’ve all reached the same conclusion—namely, that evidence discovered under the NIT warrant need not be suppressed. We find no good reason to diverge from that consensus here…
That being said, there are some interesting issues discussed in the opinion, but here’s where it kind of falls apart. The Eleventh Circuit may be joining ten (!) other circuits in upholding the FBI’s illegal search, but it’s the first to make this preposterous claim while doing so. (h/t Orin Kerr)
In the normal world of web browsing, an internet service provider—Comcast or AT&T, for example—assigns an IP address to every computer that it provides with internet access. An IP address is a unique numerical identifier, tantamount to a computer’s name.
That’s… just completely wrong. An IP address doesn’t identify a device any more than it identifies a person or location. It is very definitely not “tantamount to a computer’s name.” The court uses this erroneous conclusion for pretty benign ends — to veto the DOJ’s belated attempt to rebrand its NIT malware as a “tracking device” in order to salvage its invalid search warrant. Even so, this slip-up is embarrassing, especially in a decision that contains a great deal of technical discussion.
But I suppose all’s well that ends unsurprisingly. The Eleventh Circuit agrees with the other circuits: the warrant obtained was invalid from the moment it was obtained as it allowed the FBI to perform searches outside of the jurisdiction in which it was issued. But there’s no remedy for the two alleged child porn consumers. As the court states here, the error was the magistrate judge’s, who should never have signed a warrant granting extra-jurisdictional searches. According to the Eleventh Circuit, the FBI agent had every reason to believe the granted warrant was valid and that the searches could be executed. No one’s evidence is getting suppressed and no one’s convictions are being overturned.
The problem with this assumption is that it glosses over the issue of the DOJ’s Rule 41 politicking, which was well underway when this FBI agent approached a judge with a warrant that asked permission to violate a rule that hadn’t been rewritten yet. To call this “good faith” presumes a lot about the FBI and its investigators. It concludes they were unaware of the DOJ’s petitioning of the US court system to rewrite Rule 41 when everything about this case points to the fact that these investigators knew about the proposed rule change and knew this NIT deployment wasn’t legal at the point they handed the affidavit to the magistrate.
In the end, it’s another unearned win for the FBI. And it’s one that comes paired with a tech gaffe that’s going to sound very appealing (!) to IP trolls.