First Circuit Appeals Court Latest To Overturn Playpen Suppression Order

from the Rule-41-changes-create-another-foregone-conclusion dept

A third Appeals Court has ruled on the tactics the FBI used to track down users of a dark web child porn site. And the third one to rule -- the First Circuit Appeals Court -- continues the government's shut out of suppression orders at the appellate level.

In the two previous cases to reach this level (Tenth and Eighth), the judges found the FBI's Network Investigative Technique to be a search under the Fourth Amendment. This wasn't much of an issue because the FBI had a warrant. The real issue was the warrant's reach: it was issued in Virginia but the NIT found a home in computers all over the US, not to mention the rest of the world.

The lower courts' decisions ordering suppression of evidence for the use of an invalid warrant have all been rejected by US appeals courts. Good faith has been granted to the agent securing the warrant, thus preventing suppression of evidence. In one case, the court even conjectured the deterrent effect of evidence suppression made little sense now that the FBI has statutory permission to ignore jurisdictional limitations when seeking warrants.

The First Circuit Appeals Court's decision [PDF] is no different than those preceding it. The previously-granted suppression is reversed and the FBI awarded good faith for its warrant application, which clearly told the Virginia magistrate judge the agency intended to violate the warrant's jurisdictional limits. This decision, however, limits its discussion to the good faith exception and the judges refuse to draw possibly precedential conclusions about the magistrate judge's legal authority to grant a "search anywhere" warrant.

The "search anywhere" part of the warrant the lower court found invalid is all academic at this point. Rule 41 jurisdictional limits have been lifted. But that did not happen until after this warrant was procured and deployed. Like the Eighth Circuit before it, the First Circuit decides this after-the-fact rule change somewhat negates the deterrent effect of suppression.

The First Circuit says good faith prevails, as the warrant was more or less explicit in its intentions and still managed to be signed by a judge. In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations.

We are unpersuaded by Levin's argument that because, at least according to him, the government was not sure whether the NIT warrant could validly issue under Rule 41, there is government conduct here to deter. Faced with the novel question of whether an NIT warrant can issue -- for which there was no precedent on point -- the government turned to the courts for guidance. The government presented the magistrate judge with a request for a warrant, containing a detailed affidavit from an experienced officer, describing in detail its investigation, including how the NIT works, which places were to be searched, and which information was to be seized. We see no benefit in deterring such conduct -- if anything, such conduct should be encouraged, because it leaves it to the courts to resolve novel legal issues.

I guess the court would prefer to tangle with legal issues it hasn't seen before. This would be one of them -- at least in terms of thousands of searches performed with a single warrant from a seized child porn server located in Virginia. The legal issues may be novel but the end result is more of the same: good faith exception granted and the admission of evidence questionably obtained.


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  • identicon
    Anonymous Coward, 1 Nov 2017 @ 5:03pm

    State what police and prosecutors did WRONG here.

    They went to a judge for authority to get IP addresses accessing a web-site. I can't imagine a judge not signing off, because "everyone knows" that IP addresses are logged, and sites can be accessed literally world wide.

    Your objection (apparently) is that any access from outside the state where warrant was obtained must be suppressed. You imply that police must FIRST obtain warrant in unknown place. That's clearly impossible. Besides insane.

    This is perfectly logical. HOW COULD IT BE OTHERWISE?

    It's a previously undefined side-effect of the Internet age that's SURE to be needed again, and so the rule has been DULY changed.

    The real questions: Why is Techdirt ALWAYS wrong on the law? Besides for letting criminals escape?

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

    • identicon
      Anonymous Coward, 1 Nov 2017 @ 6:16pm

      Re: State what police and prosecutors did WRONG here.

      The correct answer for where police should ask for a warrant for an unknown location is in a district court not in the offices' of a magistrate.

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

    • identicon
      Anonymous Coward, 1 Nov 2017 @ 9:22pm

      Re: State what police and prosecutors did WRONG here.

      Why are you shouting?
      Do you need help?

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

    • identicon
      Wyrm, 4 Nov 2017 @ 1:21pm

      Re: State what police and prosecutors did WRONG here.

      And why are **you** wrong?

      - the FBI didn't just passively "record IP addresses" as other websites do, they sent a malware to other people's computer for that purpose.

      - you're assuming what we're assuming, that the cops must obtain warrant for an unknown place. What we're saying is that the cops must follow the procedure because that's what respect and trust for the law hinges on. If they can't apply for a federal warrant, they must apply for 50 state warrants. If that's too much paperwork for them, I'm a little worried about their resources.

      - finally, we hear a lot about evidence accepted under a "good faith" exception... that doesn't really exist. That allows the cops to basically do anything as long as they pretend they didn't know better.
      I could - at the very most - understand this as a way for a cop (or fed, or whatever) out of being sued, but allowing evidence based on invalid warrant (or none at all in some cases) is basically making law enforcement completely lawless. That's the opposite of a country based on the rule of law. Accepting this is equivalent to allow for arbitrary arrests.

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

  • identicon
    John Snape, 1 Nov 2017 @ 5:13pm

    And when will the people at the FBI who literally distributing child porn for weeks going to be arrested?

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

    • identicon
      Anonymous Coward, 1 Nov 2017 @ 5:42pm

      Re: "John Snape" ignorant of settled law.

      Answer to your loaded question is: NEVER for this. I can't predict their future for other actions, but taking over an established criminal operation for purpose of catching the criminal buyers is settled law. You may think it horrible, but the "greater good" argument has some merit.

      And, the FBI was not "literally distributing child porn", only continuing to let persons knowingly download it.

      Now, I'm not fond of the criminal corporation that calls itself the "FBI", but YOUR notions lead only to anarchy worse than any outright entrapment -- which this isn't -- would be.

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

      • identicon
        Anonymous Coward, 1 Nov 2017 @ 6:45pm

        Re: Re: "John Snape" ignorant of settled law.

        And, the FBI was not "literally distributing child porn", only continuing to let persons knowingly download it.

        Umm, operating a server to let persons download child porn is indeed "literally distributing child porn". The government itself even claims so.

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

        • identicon
          Anonymous Coward, 1 Nov 2017 @ 9:23pm

          Re: Re: Re: "John Snape" ignorant of settled law.

          Oh - but ...the greater good - the greater good!


          The road to hell is paved with good intentions

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

      • identicon
        Anonymous Coward, 1 Nov 2017 @ 11:33pm

        Re: Re: "John Snape" ignorant of settled law.

        What you are, blue, is you're fond of the FBI as you are of the RIAA. As you are fond of other corporations. Just can't get enough!

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

      • identicon
        Anonymous Coward, 2 Nov 2017 @ 6:02am

        Re: Re: "John Snape" ignorant of settled law.

        They didn't just "take over an established criminal operation", they enhanced it, made the servers run better, to the point that child porn was distributed at a higher rate than before, and kept it going for a full week or two (can't remember if it was 1 or 2).

        The Drug War equivalent would have been them buying another $3M in crack and fully distributing it to the street for a couple of weeks before they decided to get around to busting anyone.

        Greater good my ass.

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

  • icon
    MyNameHere (profile), 1 Nov 2017 @ 6:44pm

    Not Really Regulated

    Honestly, the situation is one that is not really readily handled by the law as it was written at the time. The internet is a pesky thing that doesn't stop at most borders, and certainly not state ones. It was without a doubt a foregone conclusion that the actions permitted in the warrant would go past the border.

    The judge issuing the warrant essentially punted. He (or she) probably knew this would expand in scope, but figured the appeals courts could deal with it. He was correct, and more so, it appears the lawmakers have also taken a swing.

    Don't be surprised if you run into a whole bunch of this as the legal system wrestles with the online world and discovers that neat little boundaries drawn on a map don't mean much for data or illegal activity.

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

    • identicon
      Anonymous Coward, 1 Nov 2017 @ 7:03pm

      Re: Not Really Regulated

      neat little boundaries drawn on a map don't mean much for data or illegal activity.

      They never have, whether it was telegraphs, smoke signals, messenger pigeons or other means. The internet is nothing new in that respect.

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

      • icon
        MyNameHere (profile), 2 Nov 2017 @ 12:44am

        Re: Re: Not Really Regulated

        There are enough regular posters on here (including TD staff) who seem to feel that the internet is so special, that normal laws just can't apply.

        Ironic?

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

        • identicon
          Anonymous Coward, 2 Nov 2017 @ 9:09am

          Re: Re: Re: Not Really Regulated

          Probably because the intent doesn't belong to one specific country, it is it's own beast now.

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

  • icon
    orbitalinsertion (profile), 2 Nov 2017 @ 12:00am

    Did the warrant detail how this was surely wrong, but once the judge grants it, it is certain to be upheld under the good faith exception? Or was that just verbal?

    Write once, search everywhere.

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

  • identicon
    Anonymous Coward, 2 Nov 2017 @ 12:09am

    The ends justify the means, Google reportedly has the largest collection of CP on the planet. At present Alphabet does not offer it for your perusal on the web, like the FBI did. Lock them up...

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

  • icon
    Uriel-238 (profile), 2 Nov 2017 @ 12:20am

    The solution for the primary problem...

    Is to decriminalize hyper-realistic CGI child porn. It isn't nor shouldn't be a crime to want to fuck a kid, nor should it be a crime to consume or produce porn that didn't involve actual children.

    With a legal alternative as good as (if not better than) the criminal product, both producers and consumers will go legit.

    Of course, this doesn't get FBI collars, and the US legal system and Department of Justice want more convictions, regardless of their veracity, or if putting more people in jail reduces crime.

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

    • identicon
      Anonymous Coward, 2 Nov 2017 @ 8:47am

      Re: The solution for the primary problem...

      I understand the point you're making that because real people are not victims it should be legalized but still, yuck!!

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

      • identicon
        Wendy Cockcroft, 8 Nov 2017 @ 6:04am

        Re: Re: The solution for the primary problem...

        The illegality and cruelty of CP is its USP*

        You're advocating for an audio/visual version of methadone. While we're on the subject, Uriel, what makes you think that paedo-freaks are content to stop at merely viewing CP? Since they do it for kicks, the novelty wears off after a while, requiring ever more extreme content. That is why they graduate to actually doing it when they get a chance. Better to treat them for their psychological problems than to indulge them.

        -------------------------------------------------------

        *Unique selling point

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

        • icon
          Uriel-238 (profile), 8 Nov 2017 @ 11:55am

          "paedo-freaks"

          Because, Wendy Cockcroft, many of the paedo-freaks already are willing to stop within the constraints of what is legal, and what is consensual, say, engaging in age-play with a consenting adult partner, or getting off to lolicon, or whatever.

          Granted, occasionally we have the hockey-mask cases like John Wayne Gacy (he was a clown-face case, actually), but they're super rare. Most chronophiles actually don't want to hurt anyone. And like violent video games, like trashy romance novels and like cannibis, porn is really not a gateway medium to pervier, more extreme deviance.

          (In fact, to the concern of some twentieth-century feminists, the reverse is the case, and porn consumers in the dating scene are often less desperate for first-night sex.)

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

        • icon
          Uriel-238 (profile), 8 Nov 2017 @ 12:17pm

          Regarding treatment [for fetishes]

          In 21st century psychiatry, 90% of treatment is manangement, that is, we focus more on encouraging our patients to develop a skillset with which they can cope with their mental disorders. One doesn't cure insanity so much as make it manageable.

          Now, sure, we could totally Clockwork Orange pedos or any other fetishist we wanted to (gays! polyamorists! liberals!) but that makes for very miserable, often suicidal folk, essentially linking their fetish with a bunch of PTSD.

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

      • icon
        Uriel-238 (profile), 8 Nov 2017 @ 12:04pm

        Yuck!

        There are a lot of weird, creepy, messy fetishes out there, many far crazier than wanting to do kids (which is exceptionally creepy specifically because we get a bit crazy about wanting to protect our young). But in the spirit of liberty we should let pervs be pervs so long as they aren't harming anyone.

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

  • identicon
    SirWired, 2 Nov 2017 @ 8:27am

    Can you read your own quotes?

    "In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations."

    The court did NOT say that the FBI likely knew the warrant was invalid; it DID mention that the defense asserted this, but explicitly refused to accept this assertion.

    The court DID praise the FBI for making it explicit to the magistrate what it was asking for when applying for the warrant.

    The FBI applied for the warrant, made it clear what it was asking for, engaged in no judge-shopping jurisdictional games when applying for it (the hosting server was located in the district the warrant application was flied in), and the warrant was granted in a reasonable, if ultimately ruled incorrect, application of the rules. This exactly the sort of situation the good-faith exception exists for. This was not at all like the cases where officers make up their own traffic laws and then use them to justify stops, or shopping around for an ignorant magistrate to obtain what is obviously a completely bogus warrant.

    I'd also like to point out that the rule, as applied here, made little sense to begin with, and there's a reason it was quickly amended so as to not make this a problem in the future. How is justice served by having to apply for 94 separate warrants for what is essentially the same search? It'd be a pointless waste of judicial and law-enforcement resources. Moreover, there's no reason to think that if the FBI HAD filed all this pointless paperwork, that any of the applications for the warrants would have been refused.

    There can certainly be an argument over if we should ever have a good-faith exception to the "poisonous tree" doctrine, but if there is going to be one, it was certainly applied correctly here.

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

    • identicon
      Anonymous Coward, 2 Nov 2017 @ 9:06am

      Re: Can you read your own quotes?

      Just because following established laws is hard doesn't mean you should be allowed to bypass them when trying to investigate or prosecute.

      I don't like the fact that people were trafficking in child porn and I hope they are arrested and convicted. But they still have the same rights as every other citizen of the US. If the government can ignore the rights of one group then they can do it to anyone. If laws are inadequate for the situation the government should first fix the law before disregarding it.

      My biggest problem of what the FBI did is that they failed to maintain a chain of custody for the evidence. During proceedings the FBI stated they didn't use encryption and the data was transmitted in the clear from the accused 's computer to the FBI's server. Nor will they disclose how the NIT functions so that it can be scrutinized by experts to prove the way it handles evidence is not compromised. Without these things it is possible the evidence was tampered with and the accused are innocent.

      What if your computer was used as a bot to access the server? What if you don't consume child porn but while on the darknet you accidently went to the website not knowing a link would take you there? How do we know the IP address info was generated by the NIT and not by a cop with a hunch and an axe to grind? How do we know the NIT didn't plant child porn on the accused's computer?

      Unless the FBI can prove this chain of custody and have verifiable proof of how the NIT works, the evidence should be blocked.

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

    • icon
      That One Guy (profile), 3 Nov 2017 @ 12:50am

      Re: Can you read your own quotes?

      How is justice served by having to apply for 94 separate warrants for what is essentially the same search? It'd be a pointless waste of judicial and law-enforcement resources. Moreover, there's no reason to think that if the FBI HAD filed all this pointless paperwork, that any of the applications for the warrants would have been refused.

      'They could have done it the right way, but that would have taken more work so meh.' is a lousy excuse for violating jurisdiction rules. The law is supposed to constrain those tasked with upholding it. Legal restrictions are not there to serve them, they're there to protect the public from them by putting restraints on what they can and cannot do, and how they can do certain things.

      As far as resources go we're talking about the FBI, a major government agency. If they don't have the resources to file for even a hundred warrants then they don't have the resources for anything, as pretty much any real work is going to be more resource intensive than that. 'Here is where we want permission to search, this is what we're looking for, this is why we believe we will find it there' is not a high bar to meet.

      If you can't figure out how justice is served by those enforcing the law being required to follow the law and being slapped down when they don't then I really don't know what to tell you, as that one seems so obvious as to almost be a rhetorical question.

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

      • icon
        MyNameHere (profile), 3 Nov 2017 @ 1:44am

        Re: Re: Can you read your own quotes?

        Sorry, lousy argument.

        "The law is supposed to constrain those tasked with upholding it."

        Constrain, yes, but not create make work and run the justice system into the ground. This really needed a single good global warrant and not a warrant for each and every doe.

        Think about it. In order to make this work, they would have to apply for a warrant in each and every jurisdiction in the US, and potentially ask for an international warrant, just to start the ball rolling.

        https://en.wikipedia.org/wiki/List_of_courts_of_the_United_States

        Can you imagine having to ask for the same doe warrant in each of those jurisdictions, just so some comment writer on a website isn't butt hurt about it?

        "If you can't figure out how justice is served by those enforcing the law being required to follow the law and being slapped down when they don't then I really don't know what to tell you, as that one seems so obvious as to almost be a rhetorical question."

        If you can't figure out that justice is best served by having the justice system deal with criminals, not make work paperwork. This issue only exists because of something that has already been corrected by clarifying the law. The intent wasn't to get around the law, otherwise they wouldn't have bothered with a warrant at all and would have just doxed the people they caught on reddit.

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

        • identicon
          Anonymous Coward, 3 Nov 2017 @ 9:18am

          Re: Re: Re: Can you read your own quotes?

          With the insults thrown in it sounds more like you are butt hurt.

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

        • icon
          That One Guy (profile), 3 Nov 2017 @ 8:42pm

          Re: Re: Re: Can you read your own quotes?

          Think about it. In order to make this work, they would have to apply for a warrant in each and every jurisdiction in the US, and potentially ask for an international warrant, just to start the ball rolling.

          Why yes, performing investigations that involve searches across wide areas would take work, just like if they wanted to search two physical properties owned by two different people located in two different jurisdictions.

          'It would have taken more work' is not a persuasive argument, as I noted above.

          Can you imagine having to ask for the same doe warrant in each of those jurisdictions, just so some comment writer on a website isn't butt hurt about it?

          So arguing that government agencies shouldn't be allowed to get one warrant to search everywhere counts as 'butthurt' now? Classy.

          If you can't figure out that justice is best served by having the justice system deal with criminals, not make work paperwork.

          Jurisdictional limitations exist solely to create 'make work paperwork', got it.

          This issue only exists because of something that has already been corrected by clarifying the law.

          Which I suspect was rushed through because they realized that their cases didn't have legal grounding under the current law, was then retroactively applied to excuse the actions taken, and opens the door wide for any foreign governments/agencies to return the favor.

          The intent wasn't to get around the law, otherwise they wouldn't have bothered with a warrant at all and would have just doxed the people they caught on reddit.

          'They could have done worse' is likewise not a persuasive argument.

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

        • identicon
          Anonymous Coward, 5 Nov 2017 @ 10:22pm

          Re: Re: Re: Can you read your own quotes?

          You don't even want the police to bother with a warrant. Every time procedure gets brought up you throw a hissy fit. It's like saying that because your demeanor was polite you should be permitted to punch me in the teeth.

          not make work paperwork

          "I believe in police accountability, but how dare you try to make procedures transparent and adhered to so there can be a paper trail for judges to refer to, how DARE you!"

          This is why nobody believes you, bobmail.

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


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