The proposed Rule 41 changes recently adopted by the US Supreme Court can't go into force fast enough for the FBI. The changes -- if approved by Congress (which needs to do nothing more than literally nothing for this to happen) -- would allow it to hack computers anywhere in the nation by removing jurisdictional restrictions.
Its decision to keep a child porn site up and running in order to deploy a hacking tool to sniff out obscured user information now appears to have been a colossal mistake. The warrant for the search performed by the FBI's NIT was issued in Virginia, but the actual searches took place all over the nation. While the seized server may have been located in the state, the users identified by the NIT were located as far away as the opposite coast. The FBI's decision to ignore jurisdiction limits under Rule 41 is now costing it loads of evidence.
Judges in Massachusetts, Oklahoma and Kansas have found the searches to be illegal because they're based on invalid warrants. The government is now fighting these suppression orders. In Oklahoma, it recently entered its challenge of the court's decision to suppress evidence obtained with the NIT, using an interesting take on Rule 41 that attempts to align it with the infamous All Writs Act -- mainly that Rule 41 should be construed liberally to allow the FBI to do anything Congress hasn't expressly forbidden it to do.
Rule 41(b) is meant to be applied flexibly, not rigidly. United States v. Koyomejian, 970 F.2d 536, 542 (9th Cir. 1992). When emerging technologies create a situation in which the specific language of Rule 41 does not explicitly permit a warrant, the Supreme Court has concluded that Rule 41 “is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause.” United States v. New York Tel. Co., 434 U.S. 159, 169 (1977). The Supreme Court goes on to explain that a flexible application of Rule 41 is supported by Fed. R. Crim. P. 57(b), which provides in the absence of controlling law, “a judge may regulate practice in any manner consistent with federal law, these rules and the local rules[.]”
Just as the DOJ government would prefer we focus on a case
that's almost four decades old (1979's Smith v. Maryland
) when discussing bulk surveillance, Stingray devices and cell site location info, it wants us to page through late 70s court decisions when discussing the FBI's actions during the last couple of years.
In the middle of its paragraph stating that courts should be granting the FBI much more leeway when it deploys previously-unused investigative techniques, the DOJ slips in a reference to 1977's US v. New York Telephone Company
-- the same Supreme Court decision it says justifies its use
of the All Writs Act to force Apple to comply with demands to unlock encrypted iPhones.
The problem with the DOJ's argument is that this isn't a case where a warrant isn't "explicitly permitted." Warrants were permitted, but deployment was supposed to be limited to the jurisdiction where they were issued. The DOJ basically wants the court to forget its position as a check against government overreach and validate the FBI's invalid warrants. In doing so, it misleadingly portrays the Supreme Court's statements on the matter by selectively quoting from the decision
. The wording surrounding the DOJ's pull quotes only shows the court determining that Rule 41(h)
does not restrict warrants to justifying the search and seizure of "tangible items."
Although Rule 41 (h) defines property "to include documents, books, papers and any other tangible objects," it does not restrict or purport to exhaustively enumerate all the items which may be seized pursuant to Rule 41. Indeed, we recognized in Katz v. United States, 389 U. S. 347 (1967),which held that telephone conversations were protected by the Fourth Amendment, that Rule 41 is not limited to tangible items but is sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause. 389 U. S., at 354-356, and n. 16 See also Osborn v. United States, 385 U. S. 323, 329-331 (1966).
This obscures the real issue here: Rule 41(b)
, which currently limits deployment of warrants to the jurisdictions where they were issued.
Going beyond this legal sleight of hand, the DOJ also claims that the entire two-week period it ran the child porn site while it deployed its NIT was fraught with "exigent circumstances."
The magistrate judge’s Report and Recommendation rejects the assertion that exigent circumstances would have justified the warrant. The judge’s analysis identifies the underlying exigency as being the “downloading and distribution of child pornography,” exigent “only because the Government opted to keep the Playpen site operating while it employed the NIT.” Doc. 42, p. 27. The exigent circumstances that would have justified the use of the NIT, however, were tied to the on-going rape and abuse of children—as opposed to simply its depiction.
Even if you buy the DOJ's argument that a two-week period -- in which warrants were obtained -- is still somehow "exigent," you have to get over the hurdle that exigent circumstances is almost always used to salvage the results
of warrantless searches. It can't be used -- or at least hasn't been used until now -- to salvage the warrants themselves. The court here declared the warrant to be "void ab initio
," meaning the warrant was never valid at any point.
Circumstances cannot be declared "exigent" if the time exists to obtain warrants
. The DOJ's argument here isn't even coherent enough to be circular. It's simply nonsensical. Either the situation is exigent and warrants must be put on the back burner, or circumstances are not exigent and warrants can be obtained. It can't be both things at once, even if it would be oh so convenient for the DOJ if they were.
Exigent circumstances or not, the warrant obtained was invalid. The DOJ is hoping to turn a search with a void warrant into a warrantless search in order to bypass the Rule 41(b) restrictions it argues one paragraph earlier
shouldn't prevent it from performing its searches wherever it feels like it.
The worst case scenario, though, is what could happen if everything falls into place for the DOJ. If the jurisdiction limitations are removed with the Rule 41(b) changes, future NIT warrants would be valid and suppression would be nearly impossible. But if the court buys its "exigent circumstances" argument, the FBI may feel more comfortable relying on the exception... and begin deploying its hacking tools anywhere it feels like without ever
running it past a judge.