Earlier in the year, the FBI revealed that they had taken over a site in the dark web and reeled in hundreds of suspects in a sting operation. Due to the nature of the site (a shadowy community where its content very heavily leaned towards, but not exclusively to, child porn) many people online voiced support for the move. But detractors could not help but see overreach in part of the FBI.
Due to how sites in the dark web are accessed – via the use of a Tor browser, which is designed to hide people’s identity, including their IP address – the FBI was forced to use a novel method for identifying suspects. In essence, the FBI planted malware on the suspects’ computers. (The FBI does not deny installing software, which is referred to as an NIT, although it does take umbrage at labeling it “malware.”)
This action sounds absolutely horrendous until one realizes that tapping phones, physical surveillance, and planting bugs amounts to the same thing. As long as the FBI obtains a warrant, it is legal. But, this is where the detractors claim illegality.
Was a Warrant Warranted?
This week, the US District Court for the Western District of Texas (W.D. Tex) has ruled that the FBI’s hack of computers is “unquestionably a search” – a claim that the Justice Department insists is not – and necessitates a warrant. Other courts have found the opposite, while one other US court has ruled identically to W.D. Tex.
So far, so good for the FBI; they obtained a warrant prior to the sting. The problem, however, hinges on whether the judge who issued the warrant was in the position to do so. W.D. Tex argues that she didn’t:
This Court disagrees with the reasoning in Darby and Matish [defendants who are in the same position, at other courts], and instead finds persuasive the reasoning in Michaud, a case from the Western District of Washington, addressing the NIT Warrant… this Court finds that the “activating computer” was never physically present within the Eastern District of Virginia [where the warrant was issued], and that any digital presence of the “activating computer” was insufficient to convey jurisdiction under Rule 41(b)(4).
(The “activating computer” referred to above is the suspect’s computer, which upon opening certain web pages, would trigger the malware/NIT).
In other words, the FBI’s warrant is invalid outside the “Eastern District of Virginia,” substantially impacting the number of suspects arrested.
Uh-oh. (Although, as noted before, other courts have ruled otherwise.)
Clarification Really Soon
The diverging judgments are obviously bad business for the Department of Justice. Apparently, this has become such a big issue that SCOTUS is getting involved:
on April 28, 2016, the Supreme Court submitted the following proposed amendment to Rule 41(b) to the Congress:
(b) at the request of a federal law enforcement officer or an attorney for the government…
(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
(A) the district where the media or information is located has been concealed through technological means; or…
Letter from Justice John G. Roberts to the Honorable Paul D. Ryan and the Honorable Joseph R. Biden, Jr. (Apr. 28, 2016)
The W.D. Tex judge notes that the above “bolsters” its position on whether the warrant was appropriate.
Won’t Suppress Evidence
And yet, the court decided that the evidence that was collected under the same dubious warrant should not be thrown out.
Why? Because of “good faith.” To put it simply and in layman terms, even if evidence was collected in an unconstitutional manner, if it looks like law enforcement tried to do its best in following legal procedures, and wasn’t trying to intentional mislead anyone, then all’s cool.
That is, unless there are some serious constitutional issues involved.
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