DOJ Deploys Highly-Questionable Legal Arguments In Attempt To Save FBI's Hacking Warrants

from the let-us-tell-you-how-to-read-the-applicable-statutes-and-precedent dept

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.


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  • identicon
    Anonymous Coward, 4 May 2016 @ 9:35am

    That's why they are in a hurry to get the Supreme Court Committee to approve the new rule change for warrants.

    Once again we learn that the FBI has been doing illegal stuff is and now working to make them illegal and hope we forget about all the times they committed crimes.

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 4 May 2016 @ 9:58am

    "Colossal mistake" or strategic win?

    Someone at the DoJ is carefully selecting egregious cases to extend their powers. They either create new precedent or use their failure to do so as a reason to change the underlying rules and laws.

    A new rule is stronger and far more valuable than a non-binding precedent from a magistrate judge. They would gladly throw away these three prosecutions for new powers.

    As for the value of prosecutions, it's easy to justify them as being inconsequential. These were apparently people looking at pictures, not creating the content or profiting from the distribution.

    reply to this | link to this | view in chronology ]

  • identicon
    Andy, 4 May 2016 @ 10:08am

    yeah!

    Like everyone i understand the law, if i am lead to a website by clicking on a link i cannot be held responsible for the content on that site , in fact i can demand the site operators be punished for making that content available online. So is it possible that the fbi can be sued for spreading porn and not just porn but the worst type of porn available, they are distributing it and spreading it and even if they do not attack everyone that comes across there web page they are still liable for the spreading of content in other countries who could sue the fbi for billions for making child porn available to everyone and even advertising it online.

    Damn the courts should find them guilty of a very serious crime and stop them and punish them.

    Imagine if they sold hundreds of guns to a gang and that gang used the guns in multiple crimes before the fbi arrested or tried to arrest them well that i am sure happens and it is just wrong and not needed in a modern society.
    The FBI must be reigned in and stopped from enticing people to commit crimes by supplying the tools needed to commit those crimes, they are the criminals for encouraging crimes for pushing people to commit crimes for giving them the tools to commit crimes , tools they would otherwise never have had access to , also the very same fbi have previously stated that when a person they set up backed down and said they could not do the crime they were set up to do the FBI actively talked them into it , that is a crime not of the person being set up but the fbi and until society gets outraged and demands changes things are going to get much worse.

    reply to this | link to this | view in chronology ]

    • identicon
      DOJ, 4 May 2016 @ 10:48am

      Re: yeah!

      "Imagine if they sold hundreds of guns to a gang and that gang used the guns in multiple crimes before the fbi arrested or tried to arrest them well that i am sure happens and it is just wrong and not needed in a modern society."

      Ever hear of "Fast and Furious"

      reply to this | link to this | view in chronology ]

  • identicon
    David, 4 May 2016 @ 10:13am

    If they need jurisdiction, can't they get it?

    They are the FBI. If they are searching a server in VA and see in the logs there are IP addresses in CA - can't they just get a warrant in CA as well? Are they that lazy? Or did I just answer myself?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 May 2016 @ 12:05pm

      Re: If they need jurisdiction, can't they get it?

      It was a TOR server, sso the logs are useless for identifying actual client connections, or which state/country they are in..

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2016 @ 11:19am

    Never though I would see the day where I viewed the DoJ as a rogue criminal agency. Corrupt certainly but openly criminal, didn't see that coming.

    "WE are above the law, so lick our boots or get beaten up/murdered"

    reply to this | link to this | view in chronology ]

  • icon
    Nick (profile), 4 May 2016 @ 11:34am

    I really don't see much of a problem with the FBI maintaining the site for long enough to gather user information. Now, TO BE FAIR, I have not read the details (duration of ownership, or details of information gathered) but I'm all in favor of using this as bait to find the people who would view this kind of content.

    I see this as the police setting up fake drug dealers to catch the people who purchase illegal drugs.

    reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 4 May 2016 @ 2:46pm

      Re:

      This is more akin to your neighbor, who's a cop selling you - or even plain giving you - a weapon, complete with registration, waiting period, etc., and then the next day, that same cop or another arresting you for possessing stolen property - namely the weapon you just obtained from the cop.

      If I were asked as a judge to rule on a challenge to one of these warrants, I would deal very, VERY harshly with every FBI agent and us attorney involved even peripherally with this matter.

      reply to this | link to this | view in chronology ]

      • icon
        Nick (profile), 6 May 2016 @ 11:40am

        Re: Re:

        I don't see how that can be a similar situation. If your neighbor is telling you that the transaction is completely legal (registration, waiting period, etc) then it is a legal exchange. If the seller lied, it is not the buyers fault for having bought it.

        People accessing a server which is specifically designed to distribute illegal goods (child pornography) then there is no expectation that it is a legal exchange.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 May 2016 @ 11:41am

    If they truly believed the site was being used to facilitate new child rapes, doesn't that mean by keeping it up that they were actively facilitating child rape? They already had a copy of the site and could go through its contents at their leisure to identify victims and possible suspects. And where are all of the rapists? The public cases thus far have only been against sad masturbators. It's pretty clear they just wanted to be able to arrest a bunch of "someones" to justify their existence and perhaps purposefully filed the warrant incorrectly to buttress the pending rule 41 changes.

    reply to this | link to this | view in chronology ]

  • identicon
    rsizzle, 14 Jul 2016 @ 1:16am

    works of the DOJ

    For heavens sake, Child Pornography is the uttermost low of actions by us humans. If the DOJ goes after those fu__s with some sort of sting operation like the one described here more power to them. I don't agree with probably any other of their actions but when it comes to children, THEY ARE CHILDREN!!! enough said. If some one is against this you are a sicko and and should be put away too. The DOJ are doing some extremely un-lawful things, Stingray, monitoring every text and phone call made, not only by past felons but anyone associated with them. Some of these people have become good citizens work hard, trying to make a living honestly and ethically. They look after their families, but does the DOJ care about that? Nope they just continue to pry! Its not right and it is unconstitutional. I am definitely not a fan of these people but on this one I do agree. Children are precious and are our countries future.

    reply to this | link to this | view in chronology ]

  • identicon
    rsizzle, 14 Jul 2016 @ 1:16am

    works of the DOJ

    For heavens sake, Child Pornography is the uttermost low of actions by us humans. If the DOJ goes after those fu__s with some sort of sting operation like the one described here more power to them. I don't agree with probably any other of their actions but when it comes to children, THEY ARE CHILDREN!!! enough said. If some one is against this you are a sicko and and should be put away too. The DOJ are doing some extremely un-lawful things, Stingray, monitoring every text and phone call made, not only by past felons but anyone associated with them. Some of these people have become good citizens work hard, trying to make a living honestly and ethically. They look after their families, but does the DOJ care about that? Nope they just continue to pry! Its not right and it is unconstitutional. I am definitely not a fan of these people but on this one I do agree. Children are precious and are our countries future.

    reply to this | link to this | view in chronology ]


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