Magistrate Judge Paul J Cleary is the second judge in the FBI mass hack case who just suggested throwing out the evidence obtained by a piece of malware that the federal agency had previously uploaded on the infiltrated PlayPen child porn site (as part of Operation Pacifier) back in February 2015. On April 25, the judge just recommended the evidence to be suppressed in a similar case.
The new recommendation relates to Scott Fredrick Arterbury, who was arrested in November 2015 in Oklahoma and was charged with the possession of child pornography content. Judge Cleary made this statement in his report:
“This Court finds that the NIT (network investigative technique) warrant was not authorized by any of the applicable provisions of Rule 41. The warrant is void ab initio, suppression is warranted and the good-faith exception is inapplicable”
Rule 41 governs when judges can issue warrants for search and seizures. In this case, legal problems can come when the Federal Bureau of Investigation hacks computers in unknown locations.
Cleary also added to other instances of the Playpen investigation, and to last week’s decision, to throw out evidence. The key issue is with the judge’s decision of signing the NIT warrant, Magistrate Judge Theresa C Buchanan in the Eastern District of Virginia, who had the authority to green-light a search outside of her district. However, the Department of Justice had claimed the search took place in the Eastern District of Virginia, where the government facility running the PlayPen server was located.
Cleary, on the other hand, agreed with Arterbury’s defense in the point that the police search occurred on the suspect’s computer in Oklahoma, which is clearly outside of Virginia. This is almost the same what Judge William G Young in Massachusetts wrote in his ruling last week.
“The property seized in this instance was Arterbury’s computer, which at all relevant times remained in Oklahoma,” Cleary stated.
Law enforcement authorities are sometimes granted a good-faith exception on Rule 41 in cases where investigators are thought to have acted on what they believed to be a legal warrant. However, Judge Cleary says that it does not apply for Arterbury’s case since the man’s house search would not happen at all if it wasn’t for violation.
Arterbury’s trial is set for the date of May 17.