In late 2014 and early 2015, the FBI
seized “Playpen,” a website where people viewed, downloaded, and discussed
child pornography. It did not shut the website down. Instead, the FBI operated
the website for two weeks, meaning the government was complicit
in the dissemination of child pornography. The FBI did this, in part, to
deploy malware to thousands of unsuspecting visitors the website through Tor, a
software that encrypts publicly available IP addresses. The FBI called the use
of malware a “Network Investigation Technique.” This malware copied identifying
information of those who access the website.
To facilitate the distribution of
this malware, the FBI sought and obtained a warrant from a Magistrate Judge in the
Eastern District of Virginia (the cases refer to this warrant as the “NIT
warrant.” That warrant authorized the collection of the identifying information
of anyone anywhere in the world who accessed the website.
There are a couple of problems
with that approach. First, the Fourth Amendment requires warrants to state with
particularity the place to be searched and the thing to be seized. This warrant
did not identify any particular place or thing to be searched. Instead, it
authorized searches of yet-to-be-determined IP addresses.
Second, Federal Rule of Criminal
Procedure 41 (the version in effect at the time of this investigation; the rule
has been amended since) limits a magistrate judge’s authority to issue warrants
to search places located in the district where the magistrate judge works. This
NIT warrant authorized searches of any IP address anywhere in the world and
resulted in the search of thousands of people.
Although some
district courts suppressed the evidence, the federal Courts of Appeals have
all said either the search was not illegal or that the evidence should not be
suppressed because the average FBI agent wouldn’t know that a warrant
authorizing a worldwide search of unknown places was unconstitutional and void
from the start. In United
States v. Bateman, the Sixth Circuit re-emphasized that point.
Bateman offers little new to the discussion of these issues
surrounding the NIT warrant. Once again the court held that FBI agents relied
in good faith on the NIT warrant to deploy this malware to search for the IP
address of anyone who accessed the website. In a footnote, the court clarified
that the investigative method used was not a “tracking device,” but instead a “search”—a
distinction that has constitutional significance.
The only additional issue
discussed was whether Bateman should have received a Franks hearing to determine if the agent provided misleading or
false information in the warrant application. The affidavit stated that the
website was “a forum dedicated to the advertisement and distribution of child
pornography, as well as a forum dedicated to the sexual abuse of children.” He
noted the website did not advertise child pornography, and the home page
displayed images of child erotica, which is legal, not child pornography, which
is illegal. The Sixth Circuit rejected these arguments as merely “splitting
hairs” or “technicalities” because many other links or threads on the website
were obviously showing or discussing child pornography. The court also faulted
Bateman for not demonstrating (without the benefit of a hearing) that the agent
knew his statements were false and misleading.
Unless the Supreme Court or the
full Sixth Circuit takes an interest in these issues, most of the NIT
litigation seems to have come to an end.
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