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Judge: FBI PlayPen Hack Is “Unquestionably” A Search Under Fourth Ammendment

Fallout from the FBI’s PlayPen case continues as a Texas federal judge rules hacking does constitute a Fourth Ammendment “search.” The judge writes that “This was unquestionably a ‘search’ for Fourth Amendment purposes.”

The FBI used malware called a Network Investigative Technique, or NIT, to infect a suspect’s machine. After gaining control of PlayPen in 2015, the FBI deployed the NIT to thousands of machines across the US. This is where the issue starts to manifest itself. A warrant was obtained, permitting them to use the NIT to gather information from suspect’s computers.

However, the warrant that permitted the hacking was granted by a a magistrate judge

in the Eastern District of Virginia. According to the Federal Magistrates Act, magistrate judges must only operate within their district. An example of this can be seen in a motion to supress evidence filed by another PlayPen member. The majority of the motion was based on legitimate reasoning behind whether or not the NIT constitutes a search. But part of the appeal hinged on the territorial limitations of the magistrate’s warrant. Since the defendant lived in the Eastern District of Virginia, the motion was dismissed.

In the case against Jeffrey Torres of San Antonio, Texas, the motion to dismess evidence concluded uniquely. Courts are repeatedly ruling that the FBI hack was illegal. However, until now, no judge has ruled that law enforcement hacking is considered a search under the Fourth Ammendment. Previous judges made their decision based on the defendant’s lack of “reasonable expectation of privacy.”

On September 9, Judge David Alan Ezra made a decision regarding the Torres dismisal filings.

Relevent excerpt as follows:

Here, the NIT placed code on Mr. Torres’ computer without his permission, causing it to transmit his IP address and other identifying data to the government. That Mr. Torres did not have a reasonable expectation of privacy in his IP address is of no import. This was unquestionably a “search” for Fourth Amendment purposes.

Judge Ezra further agrees that the NIT warrant technically violates Rule 41(B), meaning that it was illegally issued. The motion to supress evidence was, however, denied based on a “good faith” exception defined in a Supreme Court case. The exclusionary rule states that evidence obtained from a search violating the Fourth Amendment be suppressed. This “good faith” exeption has been interpreted to mean one where valid probable cause existed prior to the warrant. Similarly, a neutral magistrate judge would need to sign the warrant.

Judge Ezra’s reasoning:

Further, there is no evidence that either the FBI agents seeking the warrant or the magistrate judge in the Eastern District of Virginia willfully violated Rule 41(b)(4) or otherwise acted in bad faith when they respectively sought and issued the NIT warrant. The evidence before the Court demonstrates that the FBI conducted an extensive investigation of “Website A” over a period of time, sought and obtained a search warrant well-supported by probable cause to deploy a NIT to identify the IP addresses of those computers accessing the site, and used these IP addresses to obtain residential search warrants, such as the one used apprehend Mr. Torres.

The order concluded with “The instant NIT warrant has brought to light the need for Congressional clarification regarding a magistrate’s authority to issue a warrant in the internet age.”

With the very likely changes to Rule 41 in the future, Congressional clarification may make matters more confusing. Even though a precedent regarding law enforcment hacking may not have been set, Judge Ezra’s ruling is promising.

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