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.

Filed Under: doj, evidence, fbi, first circuit, gag order, nit, playpen, suppression order


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  1. 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.

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