Legal Issues

by Tim Cushing


Filed Under:
doj, fbi, ip address, nit, playpen, privacy, warrant



Judge In Playpen Case: FBI's Warrant Is Valid, Even If Its Claims About No Privacy In IP Addresses Are Not

from the a-net-win-for-the-feds dept

Another court handling an FBI Playpen case has handed down its decision on a motion to suppress. Like other courts fielding prosecutions resulting from this massive investigation, it has found [PDF] that the FBI's NIT (Network Investigative Technique) is invasive enough to be called a "search." (via FourthAmendment.com)

The FBI must have felt its NIT deployment would be considered a search. That's why it obtained a warrant in the first place. But it's been frantically peddling "not a search" theories as court after court has declared its warrant invalid because the searches were performed outside of the issuing magistrate's jurisdiction.

In this case, the issue of whether or not the NIT deployment was a search has not been disputed by either party. The court addresses it anyway because it affects the reasoning that follows.

Before reaching the merits of Defendant's motions, it will be useful to address a preliminary question unaddressed by the parties: Was the deployment of the NIT a "search" of Defendant's computer within the meaning of the Fourth Amendment? If the use of the NIT was not a search, the Fourth Amendment was not implicated, no warrant was required, and any violation of Rule 41(b) irrelevant.

Rule 41(b), which may be drastically altered by the end of this year, restricts searches to the jurisdiction where the warrants were issued. The FBI is well aware of the deficiencies of its NIT warrant, which is why it presented this legal theory to court in response to an earlier motion.

The government in its response to Defendant's First Motion to Suppress never argues that no warrant was required because deployment of the NIT was not a Fourth Amendment search. See Gov't's Resp. to First Mot. at 15-38. In failing to raise this argument when it would have been appropriate, the government has likely waived it. The government does, in justifying the scope of the warrant, argue that Defendant had no reasonable expectation of privacy in his IP address, even though he was using the Tor network.

The court blows past the "no expectation of privacy in IP addresses" for the moment, instead focusing on the execution of the FBI's NIT.

The "contents" of a computer are nothing but its code. In placing code on Defendant's computer, the government literally—one writes code—invaded the contents of the computer. Additionally, the code placed on Defendant's computer caused Defendant's computer to transmit certain information without the authority or knowledge of Defendant. In this manner the government seized the contents of Defendant's computer. Just as in Riley, it is irrelevant that Defendant might not have a reasonable expectation of privacy in some of the information searched and seized by the government. The government's deployment of the NIT was a Fourth Amendment search.

This key element having been decided, the court moves on to the warrant itself, as well as the government's contention that an IP address has no expectation of privacy. As to the latter, the court points out that the government obtained much more than just an IP address with its NIT and that it used an intrusive means to do so. The court ultimately agrees with the assertion about the lack of privacy in IP addresses, but does not agree that obtaining an IP address in this fashion can be considered harmless under the Fourth Amendment. Hence the nod to the Supreme Court's Riley decision. While many records contained on a phone may be subject the Third Party Doctrine and obtained without a warrant, they must be obtained from the third parties, rather than from the phone itself. Replace "phone" with "computer," and information with no built-in expectation of privacy gains a privacy shield due to where these "records" are stored.

The defendant's second motion to suppress brings up the Rule 41(b) issue. But it fails, spectacularly, because of the defendant's location.

Defendant argues that Rule 41(b) only allows magistrate judges to issue warrants for searches outside of their districts in limited, well-defined circumstances, none of which apply to the facts of the instant case. Second Mot. at 6-11. Of course, Defendant acknowledges that the website was being run from within the Eastern District of Virginia, that the magistrate judge sits in the Eastern District of Virginia, and that Defendant's computer was located in the Eastern District of Virginia when the NIT was deployed.

The legal theory advanced by the defense is that the warrant is still invalid, even when deployed in its proper jurisdiction, because it permitted the FBI to search an untold number of computers located all over the country. The court doesn't buy this rationale. In fact, it states it would have denied suppression even if the warrant had failed to hold up because the FBI took every step it could to ensure the legitimacy of its search.

The FBI agents in this case did the right thing. They gathered evidence over an extended period and filed a detailed affidavit with a federal magistrate in support of their search warrant application. They filed the warrant application in the federal district that had the closest connection to the search to be executed. The information gathered by the warrant was limited: primarily the IP addresses of those that accessed Playpen and additional information that would aid in identifying what computer accessed the site and what individual used that computer.

The judge doesn't let the FBI off the hook entirely. It also addresses the FBI's last-minute argument that the defendant shouldn't even have been allowed to challenge the warrant.

The government also argues that Defendant does not have standing to challenge the warrant because the alleged defect in the warrant, that it exceeded the magistrate's jurisdiction, does not apply to him because his computer was in the Eastern District. This seems to be a novel interpretation of standing law in Fourth Amendment cases. The standing inquiry in Fourth Amendment cases asks if the individual seeking suppression had a reasonable expectation of privacy in the thing searched. See Rakas v. Illinois. 439 U.S. 128, 133-34 (1978). Defendant's computer was searched, and he has a reasonable expectation of privacy in his computer.

The Playpen saga is a complete mess. There's nothing in this mixed bag of decisions that tips the scale in either direction. For every win about the lack of privacy in IP addresses the FBI secures, it loses another one to the invasive method it used to obtain these addresses. Every time a court grants its credit for "good faith," multiple courts countered with opinions finding the warrants invalid from the moment they were signed by a magistrate.

About the only "win" the FBI can definitively claim is that its NIT secrets are still mostly secret. And in order to achieve that, it had to watch its evidence be dismissed by a judge who actually believed the FBI had legitimate reasons for refusing to disclose this info.

And yet, it's unlikely that this will result in the FBI examining its investigation methods. As of right now, it has less than six months before the proposed Rule 41(b) changes are adopted by Congress. And there's a good chance they will be because Congress has to have the will and determination to "opt out" while distracted by an extended holiday season of shorter work weeks, the annual budget process, reelection campaigns, and a change in regimes.


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  • icon
    Anonymous Anonymous Coward (profile), 20 Jun 2016 @ 1:12pm

    What if...

    "Amendment 4 - Search and Seizure. Ratified 12/15/1791.The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
    ...the courts, the legislature, the executive, local leo's...everybody went the other way and required a warrant for anything that might look like or even mistakenly be construed as a search...what would the government actually lose?

    We know they made cases before the degradation of the amendment.

    We know they basically get low level stuff when they assert their bravado and search even when it should be known that it isn't allowed.

    We know that more police followed the law when there were massively fewer laws.

    We know that some federal agencies have been corrupt since their inception (FBI), though we didn't know they were corrupt until the original agency director was caught, and there is nothing to prove that it has been cleaned up (and Government telling us it is OK is not sufficient) which of course leads us to question other or all agencies.

    We know that the Supreme Court, and for that matter the circuit courts, have been corrupted by the Senate exercising its advise and consent responsibility by questioning candidate judges on political, religious, and ideological views rather than legal and/or decision making and/or analytical competence.

    But if we got these judges to stop finding new ways to parse old words and do what is right for the populace and the intent of the Constitution that they are all sworn to defend and uphold:
    "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
    but instead squiggle and squirm to find new ways to bend the meaning to whatever ideology got them the job, if they went with the plain meaning of the words, found in favor of the common person rather than some special interest, or for that matter the government, just what would we lose?

    (For the moment, let's leave the unbridled tyrannical evolution of the Executive Branch that is apparent to a lot of us, aside.)

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

  • identicon
    Anonymous Coward, 20 Jun 2016 @ 1:26pm

    Going to godwin here as I wonder if operation paperclip was the beginning of the end for american democracy and freedom.

    They seem to wholeheartedly embraced the fascist culture of those "refugees" from the end of Nazi Germany.

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

    • icon
      John Fenderson (profile), 20 Jun 2016 @ 1:28pm

      Re:

      This tendency has been a part of US culture from before Nazi Germany existed. That's why Hitler was once the darling of US corporate America and why Hitler, according to his own words, modeled a great deal of his policies after what the US was already doing.

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

    • icon
      Uriel-238 (profile), 20 Jun 2016 @ 2:39pm

      Al Capone was before paperclip.

      The statute of limitations regarding Capone's tax evasion was determined creatively in order to secure Capone's conviction. It really was a case of presumption of guilt.

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

  • identicon
    Anonymous Coward, 20 Jun 2016 @ 1:48pm

    Damn, these folks were peddling child pornography. Talk about out of the frying pan and into the fire. Are these the same folks who were torturing prisoners too? To hell with the Geneva Conventions, got it. Oh, I get it, too big to fail, or he can't win.

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

  • icon
    Uriel-238 (profile), 20 Jun 2016 @ 3:02pm

    I think SCOTUS just resolved this.

    Since we're talking possession of child porn, doesn't the SCOTUS Utah v. Strieff ruling allow for any searches the FBI damn well pleases?

    After all the cost of exclusion outweighs the deterrent benefits of busting these guys for CP, since that seems to be a worse crime than a token amount of meth.

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

  • identicon
    David, 20 Jun 2016 @ 11:25pm

    New one.

    Given that the accuracy of IP address assignment is rather well-known, considering the warrant valid sounds like an invocation of a "bad faith exception". And it's not like the government does not seem to be invoking a lot of those recently.

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

  • identicon
    Anonymous Coward, 21 Jun 2016 @ 6:42am

    I'd be interested in seeing how this doctrine:

    "The 'contents' of a computer are nothing but its code. In placing code on Defendant's computer, the government literally—one writes code—invaded the contents of the computer."

    extends to commercial surveillance.

    It is nice to see somebody, (ANYBODY!) in law recognize that encoding does not fundamentally change the human rights that attach to speech. It would be even nicer if they'd take a moment and consider to what extent that actually applies to modern communications. How often is that boundary condition, (encoded vs. unencoded) being used to deprive people of civil rights?

    The contents of a datagram, are nothing but it's code. Yet no one has been brought up on charges for this or for DNS hijacking and mining, or header injection, or DPI without consent etc. etc. etc.

    A cursory investigation into the various sources of data that feed into Internet based advertising will tell you that nearly EVERY consumer interpersonal communications medium is violated in a number of ways. The justification for which almost universally derives from the idea that encoding diffuses the rights of the speaker.

    It is complex. But people understand that they are being abused even if they don't know exactly how. The questions that then follow:

    Is it not the duty of the state to defend those who cannot defend themselves? And if the state refuses, are the abused not justified in organizing for their own defense? And isn't such a means of self defense exactly what we are talking about when debate broad consumer implementation of cryptography? And when the state endeavors to confound that defense, why should we not regard the intrusion as tyranny?

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

  • identicon
    Peds Rot in Hell, 18 Mar 2018 @ 1:24am

    It's been forever with the amendments

    I think there needs to be some new rules written for the US solely for the sick pedophiles that are destroying babies/toddlers and causing them to become drug addicts in the future. Remove the pedophiles and you will have a lot less damaged kids using heavy drugs to suppress the trauma in the future. Instead our government makes more money by focusing more on arresting those who are using the drugs because they don't want to remember the sadistic peds that ruined their lives. This doesn't account for all drug users, but I am sure tons of female heavy drug users have had traumatic experiences that they wish to forget.

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

    • icon
      Uriel-238 (profile), 18 Mar 2018 @ 11:31am

      The easy road

      It's very easy to label a group as undesirable and then demand that they be purged. In this case your use of sick pedophiles would just become the new label by which persons of color, persons with differing religions, LGBTQ folk, immigrants and countercultures would be funneled into our prisons (and eventually our death camps) without due process.

      And when they come for you Peds Rot in Hell -- and they will come for you -- there will be no one left to speak out.

      We've watched this story unfold before.

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


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