Bait and Search


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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