Will ‘Dragnet’ Hacking Warrant Survive Appeals?

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By Jordan S. Rubin

In 2015, the FBI ran a child pornography website called Playpen as part of a sting operation.

During the operation, the bureau got a warrant that allowed it to hack into any computer that accessed the site, resulting in nearly 9,000 searches and scores of convictions across the country.

Defendants and advocacy groups say the warrant violated the Fourth Amendment’s “particularity” requirement, which demands that warrants sufficiently limit their parameters.

They’re currently pressing the issue in five federal appeals courts.

Ultimately, the U.S. Supreme Court could decide the digital warrant’s fate, according to attorneys and law professors who work on and follow these cases.

The Fourth Amendment issue presented in these cases could prompt one of the next “major” search and seizure decisions from the high court, professor Ric Simmons of The Ohio State University Moritz College of Law told Bloomberg BNA.

Playpen & the NIT Warrant

The bureau didn’t create Playpen, but a tip from a foreign government allowed the FBI to seize the Playpen server in North Carolina. Instead of shutting it down, the bureau kept the site running to catch creators and consumers of child pornography.

Playpen users accessed the site, located on the “dark web,” through software that allows anonymous web surfing. The site had hundreds of thousands of members before the FBI took it over and eventually shut it down.

While the bureau ran Playpen, a federal magistrate in the Eastern District of Virginia issued a warrant permitting the FBI to use a “network investigative technique” to hack into any computer that accessed the site.

The NIT warrant allowed the FBI to penetrate the anonymous software and identify the site’s users.

By authorizing hacking into any computer that accessed the site, the warrant “cast its electronic net as broadly as possible,” according to Mark Rumold, in a brief submitted to the Eighth Circuit. Rumold is an attorney with the Electronic Frontier Foundation, a digital civil liberties group supporting the defendants in these cases.

This lack of particularity makes it the type of “virtual, all-encompassing dragnet” that has previously been held unconstitutional, the brief argued.

But the NIT warrant permitted the FBI to search only those computers that accessed the Playpen site, and it specified the type of information the NIT would obtain from those computers, the government said in a brief to the Tenth Circuit. These limitations satisfied the Fourth Amendment’s particularity requirement, it argued.

The FBI was “faced with the daunting task of apprehending thousands of individuals who were engaging in horrifying child pornography crimes while cloaked in the anonymity” of the dark web, the government said in the Tenth Circuit brief.

District Split

NIT warrant cases have been prosecuted in federal courts across the country, and appeals in these cases are pending in five federal circuits, according to data provided to Bloomberg BNA by Kate Tummarello, a policy analyst with the EFF.

District Court Decisions

In three of the cases on appeal, trial courts—in Massachusetts, Colorado, and the Southern District of Iowa—suppressed the evidence from the NIT warrant. Under a then-current procedural rule, the Virginia magistrate lacked authority to issue a warrant to be executed outside her district, they said. The NIT warrant exceeded this authority because it allowed searches of computers located outside the Virginia district, the courts said.

The two other trial courts—in the Eastern District of Pennsylvania and the Eastern District of Virginia—ruled for the government. The FBI stored the Playpen server in the Eastern District of Virginia while it ran the Playpen site and searched the offending computers, so it makes sense that a magistrate in that district authorized the NIT warrant, the Virginia trial court said. The Pennsylvania court said the defendant didn’t have a strong enough privacy interest in his web browsing to require a warrant.

Getting Particular on Appeal?

NIT warrant cases pending in the First, Eighth, and Tenth circuits—where the government is appealing trial court rulings for the defendants—have already been briefed and argued, and are awaiting decisions.

Cases pending in the Third and Fourth circuits—where the defendants are appealing—haven’t been fully briefed or argued yet.

During oral arguments at the First Circuit May 3 and the Eighth Circuit April 6, judges pressed lawyers for both sides on Fourth Amendment particularity.

The NIT warrant is “unprecedented in Fourth Amendment jurisprudence,” Brad Hansen of the federal public defender’s office in Sioux City, Iowa, argued at the Eighth Circuit.

If it approves the NIT warrant on appeal, the court could be condoning “the least particularized warrant ever dealt with in Fourth Amendment case law,” he said.

But the warrant was sufficiently particular, because it targeted computers that accessed Playpen and obtained specific information from those computers, government lawyer David Goodhand said at the Eighth Circuit argument.

If the FBI searched a lot of computers with the NIT warrant, that just means a lot of people accessed child pornography, he said.

Will SCOTUS Step In?

The NIT cases are likely to reach the Supreme Court, due to the court’s “increasing interest in Fourth Amendment privacy as affected by changing technology,” professor Stephen E. Henderson of the University of Oklahoma College of Law, who teaches and writes about the Fourth Amendment’s application to technology, told Bloomberg BNA via email.

But the high court “would really prefer to see significant circuit court development and a solid split before jumping in,” Henderson, who clerked for a federal appeals judge on the Fifth Circuit, said. The Supreme Court often takes cases to resolve conflicting opinions in the federal circuits.

Given the number of these cases pending across the country, “it would be surprising if the Supreme Court doesn’t take one of the NIT cases eventually,” EFF lawyer Rumold told Bloomberg BNA.

Professor Simmons largely agreed.

“The prevalence of digital searches in the internet age means the Supreme Court will have to address the Fourth Amendment implications of these types of warrants sometime over the next few years, whether in the NIT cases or a different case,” Simmons, who co-authored a criminal procedure textbook and also writes about the Fourth Amendment and technology, told Bloomberg BNA.

The NIT cases—and digital search cases generally—present “the next biggest unresolved Fourth Amendment issue: how you deal with the breadth of digital searches, with or without a warrant,” Simmons, a former prosecutor, said.

The digital search issue “comes up in both the NIT-type cases and in the context of searching a computer (or any digital device or any cloud storage facility),” he said, noting particularity is an issue the Supreme Court needs to address in the realm of digital searches.

And taking the NIT cases, or a case presenting a similar digital search issue, would fit the high court’s pattern of taking a “major” Fourth Amendment case about every few years, he said.

Simmons noted the 2012 case of United States v. Jones, which dealt with law enforcement’s use of car GPS tracking; the 2014 case of Riley v. California, which addressed physical searches of mobile phones incident to arrests; and, most recently, the high court’s decision June 5 to hear the case of Timothy Carpenter, who is challenging the collection of his mobile phone location information without a warrant.

Oral argument in Carpenter v. United States will likely take place sometime this coming Supreme Court term, which begins October 2017, with a decision in Carpenter likely to be issued by June 2018.

There aren’t set dates for the circuit courts to issue decisions in the NIT cases. Depending on when and how the circuit courts rule, a split could emerge while the Carpenter case is pending at the high court or shortly thereafter, potentially making the NIT warrant issue ripe for Supreme Court resolution after Carpenter.

FBI Stopping at Nothing

The FBI National Press Office declined to comment for this article, citing its policy of not discussing ongoing legal matters. The Society of Former Special Agents of the FBI, Inc. was unable to have one of its members available for comment.

The Department of Justice, through spokesperson Peter Carr, declined to comment beyond the filings submitted in these cases.

But Carr shared a May 1 press release issued in connection with the sentencing of Steven W. Chase, the creator and original lead administrator of the Playpen site. Chase was sentenced to thirty years in prison followed by a lifetime of supervised release.

The press release gives a good overview of the department’s views on the operation, Carr told Bloomberg BNA.

“The abuse of an innocent child is among the most unconscionable offenses,” Assistant Director Stephen Richardson of the FBI’s Criminal Investigative Division said in the release.

“The FBI will stop at nothing to deliver justice for these innocent victims,” he said.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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