Another Appeals Court Denies Suppression Of Evidence Obtained With An Invalid FBI Warrant

from the so-much-for-valid-warrants-being-better-than-invalid-ones dept

A second appeals court has handed down a ruling on the constitutionality of the Network Investigative Technique (NIT) deployed by the FBI during its Playpen child porn investigation. The Tenth Circuit Appeals Court overturned the suppression of evidence granted by the lower court, ruling that the FBI's NIT warrant was invalid but that the agent's "good faith" reliance on the warrant prevented exclusion of the evidence.

Multiple courts have found the NIT warrant invalid. The warrant was obtained in Virginia but the search the FBI's malware performed accessed computers all over the world. Prior to the recent Rule 41 changes, warrant execution was limited to the jurisdiction it was obtained in. The Appeals Court worked around the jurisdictional limit by reasoning the NIT was sent from Virginia and returned info gathered in the same jurisdiction. It just kind of glossed over the part where computers located all over the nation were briefly infected by the NIT to obtain the information needed to pursue suspects.

The Eighth Circuit Appeals Court decision [PDF] finds more problems with the NIT warrant and execution than the Tenth Circuit did. The consolidated appeal, however, ultimately finds in favor of the government, overturning two lower court suppression orders.

First, the good news. The appeals court finds the FBI does indeed need warrants to perform these searches, even if IP addresses aren't necessarily protected by the Fourth Amendment.

In this case, the FBI sent computer code to the defendants’ respective computers that searched those computers for specific information and sent that information back to law enforcement. Even if a defendant has no reasonable expectation of privacy in his IP address, he has a reasonable expectation of privacy in the contents of his personal computer. [...] Moreover, the NIT retrieved content from the defendants’ computers beyond their IP addresses. We conclude the execution of the NIT in this case required a warrant.

The court also disposes of the government's "but it's kind of just a tracking device" argument:

Although plausible, this argument is belied by how the NIT actually worked: it was installed on the defendants’ computers in their homes in Iowa. The government rightly points out that our court interprets Rule 41 flexibly in light of advances in technology... but we agree with the district court that the “virtual trip” fiction “stretches the rule too far,” We agree with the majority of courts that have reviewed the NIT warrant. These courts have concluded that “the plain language of Rule 41 and the statutory definition of ‘tracking device’ do not . . . support so broad a reading as to encompass the mechanism of the NIT used in this case.” Id. Thus, we hold that the NIT warrant exceeded the magistrate judge’s jurisdiction.

It also agrees with the lower courts' findings the warrant was invalid from the moment it was obtained, since the NIT was clearly going to be traveling outside of the issuing judge's jurisdiction. But that's where the good news ends. The appeals court applies the "good faith" exception and declares the requesting agent -- who knew the NIT would travel outside the jurisdiction and suggested as much in the warrant request -- could rely on a warrant signed by a judge to execute these extrajurisdictional searches.

The defendants also argue that the NIT warrant was facially deficient because FBI agents should have known that a warrant purporting to authorize thousands of searches throughout the country could not be valid. Specifically, Horton argues that “there can be no credible argument that officers reasonably believed that none of the 214,898 members of [Playpen] were located outside of Virginia.” We, however, will not find an obvious deficiency in a warrant that a number of district courts have ruled to be facially valid. Further, we have declined to impose an obligation on law enforcement to “know the legal and jurisdictional limits of a judge’s power to issue interstate search warrants.” Law enforcement did not demonstrate bad faith, and we will apply the Leon balancing test as instructed by the Supreme Court.

So, law enforcement officers are not required to know the legal limits of the warrants they seek. Apparently, neither are judges, as the judge signed off on this warrant despite being told it would be executed outside of his jurisdiction.

But that's not the worst part of the opinion. The worst part is this: the court says there's no deterrent value in suppressing evidence obtained with a facially-invalid warrant because the law changed after the fact.

Because Rule 41 has been updated to authorize warrants exactly like this one, there is no need to deter law enforcement from seeking similar warrants.

Under this rationale, anyone currently incarcerated for marijuana possession or distribution in states where weed is now legal should have their sentences immediately vacated. After all, there's no deterrent effect in keeping them locked up, now that both actions have become legal.

So, it's now 2-0 in favor of the FBI in federal appeals courts. In the future, its NIT activities won't receive much scrutiny. But it appears everything it did in violation of Rule 41 prior to the rule changes is being forgiven by higher courts -- whether with generous applications of the "good faith" doctrine or by making the Rule 41 changes effectively retroactive.


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  • icon
    Anonymous Anonymous Coward (profile), 1 Aug 2017 @ 3:34pm

    Rules invalidate Constitution

    Now we have 2 Circuit Courts that fail in reading the Constitutions 4th Amendment. Some rule made up by a government agency overruling the Constitution is mind boggling.

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

    • identicon
      Anonymous Coward, 1 Aug 2017 @ 4:38pm

      Re: Rules invalidate Constitution

      "...government agency overruling the Constitution is mind boggling."


      ...don't be so hard on yourself. Like most Americans you bought the myth that the Constitution protects you from any bad guys in government power. Reality Bites !

      As the self-serving nature of U.S. government realpolitik becomes increasingly evident to more people -- such trite bromides as American society being governed “by Laws--not Men” .... becomes more difficult for intelligent minds to accept.

      Americans are heavily indoctrinated by government schools, elite academia, and the media ... to embrace the political illusion that they are ruled by fair & just laws -- not the whims of legions of dishonest men in government offices.

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

      • icon
        Anonymous Anonymous Coward (profile), 1 Aug 2017 @ 5:00pm

        Re: Re: Rules invalidate Constitution

        Like most Americans you bought the myth that the Constitution protects you from any bad guys in government power.

        Not all of us, hence the boggle.

        As the self-serving nature of U.S. government realpolitik becomes increasingly evident to more people -- such trite bromides as American society being governed “by Laws--not Men” .... becomes more difficult for intelligent minds to accept.

        Something sensible...for a change.

        ...they are ruled by fair & just laws...

        We are, the government just needs a reminder. One they will get, one way or another. It will take time, and effort, but the "Tree of Liberty" will be refreshed.

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

      • identicon
        stine, 2 Aug 2017 @ 12:54pm

        Re: Re: Rules invalidate Constitution

        Actually, it does, but it it will require us to revolt. And I think we're getting close to that point.

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

  • icon
    That Anonymous Coward (profile), 1 Aug 2017 @ 3:55pm

    So if I have it on "good faith" that my target is a murderer I have every right to shoot him in the head prior to anything actually happening?

    The law is not about "good faith", "good faith" is a pass given by courts to those charged with upholding the law who went around it & flat out violated it.

    I have it on "good faith" that the Judges issuing this ruling are taking kickbacks, lets toss them in prison... because my faith is all the evidence we need.

    "Good faith" exception is we don't need to play by the rules because someone always cuts us slack because bad people deserve bad things... so what if we keep pushing and end up nailing some innocents... their rights being sacrificed keep us all safer.

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

    • icon
      Discuss It (profile), 1 Aug 2017 @ 5:01pm

      Re:

      So if I have it on "good faith" that my target is a murderer I have every right to shoot him in the head prior to anything actually happening?

      Damn it! Quit posting what I was gonna say! :)

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

      • icon
        That Anonymous Coward (profile), 1 Aug 2017 @ 5:14pm

        Re: Re:

        I often refer to myself as a sociopath, you might want to find a psychiatrist.

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

        • identicon
          Jordan Chandler, 1 Aug 2017 @ 6:05pm

          Re: Re: Re:

          If you were a real sociopath you'd know there's no treatment ;)

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

          • icon
            Anonymous Anonymous Coward (profile), 1 Aug 2017 @ 6:14pm

            Re: Re: Re: Re:

            If he were a real sociopath (a person with a psychopathic personality whose behavior is antisocial, often criminal, and who lacks a sense of moral responsibility or social conscience.) he probably wouldn't be posting here, and he certainly would receive so many insightful votes. Maybe he just doesn't like many people. ;)

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

            • icon
              Anonymous Anonymous Coward (profile), 1 Aug 2017 @ 6:27pm

              Re: Re: Re: Re: Re:

              Damned edit button is not working again...wouldn't receive...

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

            • icon
              Atkray (profile), 1 Aug 2017 @ 6:33pm

              Re: Re: Re: Re: Re:

              I have it on good faith that TAC is a sociopath and already has researched where you live.

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

            • icon
              Uriel-238 (profile), 1 Aug 2017 @ 7:21pm

              Sociopaths

              What was once called sociopathy is now Antisocial Personality Disorder which is, curiously, less damaged (that is, less removed from functional) than bipolar or major depression. It's a personality disorder much like Borderline.

              And yes, some rare individuals with APD do engage in criminal activity. They are capable of murder more easily than normal people, but most folk who suffer from APD live their lives as much within the confines of the law as the rest of us. Axe murderers are, like sexual killers, super rare.

              Psychopath is not a clinical term, but a legal term, usually in reference to someone who is criminal and crazy enough to warrant an insanity plea. Psychosis is a range of diagnoses that includes BPD or Depression. Compare: Neurosis, Personality disorder, Schizo-effective disorder.

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

              • identicon
                Anonymous Coward, 1 Aug 2017 @ 11:14pm

                Re: Sociopaths

                They are capable of murder more easily than normal people

                You mean like many US cops, and presidents who order people killed?

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

                • icon
                  Uriel-238 (profile), 1 Aug 2017 @ 11:34pm

                  The sanity of law enforcement and officials

                  Far be it for me to diagnose people I've never met. But I certainly could not rule it out.

                  It's been hypothesized here and elsewhere that law enforcement is a refuge for personalities that like to aggress or like to kill.

                  At the same time not all killers are sociopaths either.

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

              • identicon
                Anonymous Coward, 2 Aug 2017 @ 2:37am

                Re: Sociopaths

                Time to update your lexicon. "Neurosis" has not been a category since DSM III. Current edition is the 5th.

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

                • icon
                  Uriel-238 (profile), 2 Aug 2017 @ 6:24am

                  "Neurosis"

                  It's worse than that, the way neurosis was (is?) used at my old institute -- that is, to mean an internal conflict (e.g. I want to be a well-meaning, benign person. But I also want to elevate my standard of living to do that, I will need to be aggressive and ruthless in my company's work climate.) -- is not actually what neurosis means, according to Wikipedia.

                  Granted, this was in the mid 1990s, long after neurosis had been retired in the DSM.

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

            • icon
              That Anonymous Coward (profile), 1 Aug 2017 @ 11:08pm

              Re: Re: Re: Re: Re:

              sociopaths get all the votes, because we scare people.

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

          • icon
            That Anonymous Coward (profile), 1 Aug 2017 @ 11:07pm

            Re: Re: Re: Re:

            That would imply that I have an issue with being a sociopath.

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

  • icon
    Anon E. Mous (profile), 1 Aug 2017 @ 4:14pm

    The fact that court knows that the FBI didnt follow the letter of the law and stated that the warrant was invalid is the right determination but then the court gives the FBI a pass by saying good faith so no problemo.

    The problem I have with this is the courts are leaning over backwards to allow evidence in cases to stand when it shouldn't have.

    This just gives the prosecution a tactical advantage that a defendant cant even come close to beating. Look I am not in favor of child molestors or those who buy, sell, trade or make kiddie porn, in my eyes they are way below scumbag level and as much as I would hate to see anyone of the aforementioned group go free, the governments and it's law enforcement partners need to play by the rules of law.

    The court should not be bending over backwards to allow the government and its law enforcement partners to salvage a case where there have been mis-steps and clear violations of the law in obtaining evidence etc.

    The court is supposed to impartial and weigh the evidence based on law but too many courts are allowing the government and its law enforcement partners to skirt the law and allow in evidence that shouldn't be based on violations used to obtain that evidence.

    More and more nowadays the courts have become too entwined with the prosecution and law enforcement and have lost the fact that they are supposed to be impartial.

    The scales for a defendant keep getting tilted towards the unequal side of the equation and thus put the defendant at a serious disadvantage of getting a fair hearing before the court and that is not the way it was intended to be

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

    • identicon
      Anonymous Coward, 1 Aug 2017 @ 4:19pm

      Re:

      Well the FBI does have raw access to all if the intel of US citizens, so in theory the judges might be ruling this way because they have blackmail forcing them too do so.

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

  • icon
    Ryunosuke (profile), 1 Aug 2017 @ 5:48pm

    I want to see a defense lawyer, literally question the Judge as to why we need warrants in the FIRST place, if law enforcement can just introduce any evidence it wants to, without procedure, or relevant to whether it is true or not.

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

  • icon
    Uriel-238 (profile), 1 Aug 2017 @ 7:26pm

    Is there a way to prove or disprove "good faith"

    It seems like good faith is just a means to bypass civil rights whenever the judge wants to. Are there standards by which good faith or bad faith are determined?

    This reminds me of the ruling by SCOTUS that illegally obtained evidence doesn't have to be suppressed if it's regarding to scary a crime, such as child sexual assault or child porn or axe murder.

    What it tells me is that all suspects are soon going to be child porn suspects, much the way that right now all money is drug money. It's too useful to the police when their only interest is getting more collars.

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

  • identicon
    Anonymous Coward, 1 Aug 2017 @ 9:55pm

    Hey Mike

    Do you think that Congress should not bother with destroying courts like this?

    Or course not, they should be allowed to stand and further corrupt and twist the constitution into meaningless. What was it that you said about creating a real constitutional mess if they did take down bad courts?

    Yea, this is not a constitutional mess at all, is it genius?

    As the first poster has stated...

    "Now we have 2 Circuit Courts that fail in reading the Constitutions 4th Amendment. Some rule made up by a government agency overruling the Constitution is mind boggling."

    The REAL mind boggle is the fact that TD, supposedly ran by someone that "claims" to support the Constitution, is on record as stating that it would be bad for Congress to actually exercise legitimate Constitutional Authority in lieu of clearly unconstitutional rulings.

    There is ZERO room in the Constitution for interpreting "good faith" as a circumvention of Constitutional declared rights. This court has ruled in favor of an action expressly proscribed by the Constitution, and you would rather it stand than be destroyed!

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

  • identicon
    Anonmylous, 1 Aug 2017 @ 10:38pm

    Deterrent

    How can someone be so obtuse as to think the deterrent in suppressing this evidence would only impact the use of warrants that fall under Rule 41? The deterrent, Your Honor(s?), is that violating the public's Constitutional rights will not be tolerated, even if the rules are later changed. The fact remains the warrant was invalid when issued and the Agent knew it was when he applied for it. That means he intentionally performed searches he knew to be illegal. There is no good faith for that, there cannot be. Using the fact the accused's computer visited a website and was instructed to download a program is still after-the-fact justification. Rather than highlighting a rule needing change, it highlights an Agency's failing methodology. The FBI was perfectly capable of using the phone and coordinating with their OWN offices in each state to get applicable Federal warrants issued to cover their asses in running this honeypot sting. Could have had them in less than 24 hours. Instead they had to go rogue, use a verifiably invalid justification after the fact, and just pray the Courts would side with them rather than uphold the Constitution as they have all sworn to do. Allowing them to use the evidence gathered will only encourage more of this behavior by them and other agencies as seen already with Federal rules changes to encourage State agencies to continue and even expand civil asset forfeiture behavior despite States beginning to pass laws to curb such. "Innocent until proven Guilty" is the presumption in American Law. With that in mind, a good faith exemption here is a clear signal this is no longer the case.

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

  • identicon
    Anonymous Coward, 2 Aug 2017 @ 2:47am

    [NJ_dialect] I've got your deterrent right here. [/NJ_dialect]

    How's about we all exercise jury nullification on a massive scale? Start with the assumption that some or all of the "Land & Order" chain is tainted. Cops, prosecutors, and judges are so often in cahoots to violate the civil rights of our fellow citizens that we might remind them of our power when disillusioned.

    Let's take a vacation from convictions.

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

  • icon
    MyNameHere (profile), 2 Aug 2017 @ 3:18am

    I think that the judge in this case isn't wrong. While the police are law enforcement, they are not lawyers and they cannot be 100% sure of the law - it's why they are not judge and jury, right?

    The nature of the warrant is pretty new, and it's not unusual for judges (and law enforcement for that matter) not to truly understand all of the ramifications of an internet based process.

    The real error rests with the judge that issued the warrant. The judge should have known that an internet wide warrant would be beyond his jurisdiction and declined to issue it.

    Law enforcement should have considered it as well. But in the end, it's up to the judge to decide if they have the power to issue it. The police should not suffer because a judge overstepped his bounds. The police operating in good faith to try to capitalize on the chance offered by having the site stay live, allowing them to discover so many pervs that really do need to face the law.

    Now, the upside of all of this is that any time in the future someone considers a similar NIT, they will know that they need a much more wide ranging warrant to cover it all.

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

    • identicon
      Anonymous Coward, 2 Aug 2017 @ 5:26am

      Re:

      it's why they are not judge and jury, right?

      Funnily enough, that hasn't stopped the police from acting like they are.

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

    • identicon
      Anonymous Coward, 2 Aug 2017 @ 5:52am

      Re:

      I think that the judge in this case isn't wrong.

      The real error rests with the judge that issued the warrant.

      Make up your mind. If a judge can't make right a fuck up by another judge, then they're both fucking incompetent.

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

  • icon
    SirWired (profile), 2 Aug 2017 @ 6:40am

    If "Good Faith" means anything at all, it was applied correctly here

    In this particular case, this was not an instance of an agent conveniently "forgetting" to mention relevant facts. Instead, they explicitly stated that the searches, as applied-for, were going to take place all over the country. And if a judge approves an honestly-applied-for warrant with no controlling precedent to the contrary, it is, by definition, not "bad faith" to ask for it.

    And, really, how is justice served by requiring separate applications for warrants in each Federal jurisdiction nationwide? What part of the constitution requires this? What exactly does that accomplish, given that the circumstances around each warrant would be identical? Has any court found that the warrants would not have been granted if they HAD filed the 94 applications it would require to be valid nationwide?

    And in the age where computer operations can be far-flung, why DON'T we have "digital warrants" of nationwide applicability? If somebody is doing something illegal on, say, Google Cloud, how does it make sense to have to file separate warrants for each state in which Google has a data center?

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

    • identicon
      Anonymous Coward, 2 Aug 2017 @ 8:40am

      Re: If "Good Faith" means anything at all, it was applied correctly here

      And if a judge approves an honestly-applied-for warrant with no controlling precedent to the contrary, it is, by definition, not "bad faith" to ask for it.

      Because Rule 41 has been updated to authorize warrants exactly like this one, there is no need to deter law enforcement from seeking similar warrants.

      If there was no controlling precedent to the contrary, Rule 41 would not have needed to be updated.

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

      • icon
        SirWired (profile), 2 Aug 2017 @ 11:59am

        Re: Re: If "Good Faith" means anything at all, it was applied correctly here

        I'm not following your logic; just because a rule was updated doesn't automatically imply that there was clear controlling precedent to the contrary before.

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

    • icon
      Uriel-238 (profile), 2 Aug 2017 @ 9:49pm

      Re: If "Good Faith" means anything at all, it was applied correctly here

      Does good faith mean anything at all? Can it be falsified? Can bad faith be falsified?

      I would argue that law enforcement agents in the United States have a personal interest in getting more collars than they do in vindicating the innocent, to the point that they are often motivated to plant evidence to prove guilt, or suppress evidence that might prove innocence.

      Thus it is impossible for an officer to act in good faith.

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

    • icon
      Uriel-238 (profile), 2 Aug 2017 @ 9:57pm

      Narrow Jurisdiction

      I'm not a constitutional lawyer, but I've seen a lot of police procedural shows, and I remember there being something about a requirement that a warrant has to be narrowly defined: a closely related set of suspects, specific things they're looking for, in one location or tightly defined set of locations. And if you're looking for cocaine but instead find conflict diamonds, you have to go back and get another warrant, while the suspects get to stash the diamonds elsewhere.

      I take, that as part of the gradual deterioration of our Fourth-amendment rights in the United States, our legal system eventually came to the conclusion that limiting warrants to narrow scope was too inconvenient?

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

  • icon
    WillSee (profile), 2 Aug 2017 @ 10:45am

    Good Faith

    The FBI had a good faith belief that a Virginia judge could authorize a world wide implantation of malware.

    A man in North Carolina tried to have a vehicle search thrown out because he was stopped for having a tail light out -- not a violation in that state. The judge allowed the stop because the officer had a good faith belief it was a violation.

    Ignorance of the law is no excuse -- **unless** your job is enforcing the law.

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

  • icon
    NSAbait (profile), 3 Aug 2017 @ 9:42pm

    That's nice. If they want to conduct industrial espionage to get an edge in the stock market, they can just push the desired malware. Call it creative taxation.

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


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