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Playpen Child Pornography Cases Present New Legal Challenges

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An FBI sting of the prolific child pornography website Playpen, hosted on the “dark web” service Tor, has resulted in fascinating legal questions that, unfortunately, have mostly been decided in favor of the government. These legal decisions will help shape the future of AlphaBay court cases and possibly the DreamHost subpoena request—two recent, bold moves by the Department of Justice to tackle suspected crimes online.

Graph in the United States v. Workman Eighth Circuit OpinionThe legal questions will not be confined to child pornography, but instead will shape how federal law enforcement agencies tackle online crime, particularly where a suspect conceals their physical location through technological means.

In February of 2015, FBI agents arrested a man believed to be the host of Playpen and seized the server hosting the site. They learned about the server’s location after receiving a tip from an international law enforcement agency. Because of Tor, the visitors to the website could not be identified solely from the site’s user logs. To solve this problem, FBI agents sought and received a search warrant from a magistrate judge sitting in the Eastern District of Virginia—where the agents relocated the server—that allowed them to install a “Network Investigatory Technique” (NIT) to hack into any computer that logged into Playpen with a username and password. The FBI then ran the website for two weeks, providing for the distribution of thousands of files of child pornography, and also deploying the NIT to hack over 8,000 computers.

The problem with this strategy, however, is that the search warrant granted searches well outside of the Eastern District of Virginia. Under the Federal Rules of Criminal Procedure at that time, magistrate judges could not authorize searches outside of the boundaries of their district except for a few narrow exceptions.

Users downloaded the NIT unknowingly, which would search their computer and transmit certain identifying information to the FBI. The identifying information—IP address, MAC address, and metadata about when the user would log into playpen—allowed the FBI to determine the user’s physical location. The FBI undertook hundreds of physical searches based on this information and has charged a reported 350 defendants in federal court.

Many of these defendants have challenged the search warrant with motions to suppress. They argue a number of claims, including: the warrant lacked probable cause, the warrant lacked particularity, the magistrate judge acted outside of her authority to issue warrants, and that the good faith exception does not save this warrant.

The Robert F. Kennedy Department of Justice building in Washington, D.C.

No district court has ruled the warrant lacked probable cause (due to the nature of Tor and the appearance of the website)1 and only one magistrate court found the warrant lacking in particularity.2 Most district courts and one circuit courts, however, found the warrant violated Rule 41(b).3 Even though most courts found a violation of Rule 41(b), the good faith exception saved evidence from being excluded in almost every case.4 Decision after decision praises the FBI agents for their creative efforts to catch child pornographers, despite the jurisdictional problems with the warrant.

The Eighth and Tenth Circuits agreed that the good faith exception saves the Playpen warrant partly due to the recent Supreme Court decision in Herring v. United States.5 In that case, the Supreme Court held, “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”6 The police conduct must be “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”

The good faith exception famously protects evidence from being excluded when the magistrate judge makes the incorrect legal decision because being overturned on appeal is deterrence enough for judges. Police should not be deterred through evidence suppression unless you can blame the faulty warrant on police misconduct—and gross misconduct at that.

The exceptions to the good faith exception include: (1) the affiant obtains the warrant by recklessly or intentionally supplying false information to the judge, (2) the judge abandons her judicial role, (3) the executing officers cannot reasonably believe that probable cause existed, (4) the warrant is facially deficient, and (5) the warrant is based on a bare-bones affidavit and the officers rely on officers who are ignorant of the circumstances under which the warrant was obtained to conduct the search.7

Here, defendants argued the FBI obscured the true nature of the warrant by hiding the location of the target computers on page 29 of the 33-page affidavit. As well, defendants claim DOJ and FBI lawyers knew there was a problem with this warrant because they were the very ones pushing for a rule change to fix the problem.

Most courts disagreed and ruled that FBI agents provided enough information in the warrant to place the blame on the magistrate judge for incorrectly evaluating the limits of her authority. Police, they say, should not be expected to know the intricacies of jurisdictional questions. Indeed, multiple district courts ruled that an exception for a tracking device under Rule 41(b) applied to this warrant and found the magistrate judge possessed sufficient authority to issue it.

Notably, Rule 41(b) has been amended since December 1, 2016, to add another exception for the exact type of warrant issued here. Magistrate judges may now “issue a warrant to use remote access to search electronic storage media . . . if . . . the district where the media or information is located has been concealed through technological means.”8

How far federal law enforcement agents can go with their new remote access tool remains to be seen. Seemingly, the only limits to the federal government’s ability to hack to unmask web users are sufficient probable cause and particularity.

Supreme Court Justice Gorsuch argued when he was still sitting on the Tenth Circuit that rulemakers may not expand the jurisdictional authority of a magistrate judge; only Congress has such a right.9 However, the Eighth Circuit stated without analysis that the authority to issue a warrant outside of the district “may be modified by the Rules of Criminal Procedure.”10

The good faith exception, combined with the rule change, bring us into startling new territory, and government-friendly rulings on the Playpen warrant are no help. It is conceivable for federal law enforcement agents to choose the friendliest magistrate judge among the 94 judicial districts, present a warrant without sufficient probable cause or particularity, remotely access a large number of computers, and then save the evidence because the decision rested with the magistrate.

The good faith exception jurisprudence reveals a startling lack of respect for the privacy of everyday Americans—and it could be coming to a computer near you.

 

1United States v. Taylor, No. 2:16-CR-00203-KOB-JEO-1, 2017 WL 1437511, at *3−4 (N.D. Ala. Apr. 24, 2017)

2United States v. Carlson, No. 16-317 (JRT/FLN), 2017 WL 1535995, at *13 (D. Minn. Mar. 23, 2017).

3United States v. Horton, No. 16-3976, 2017 WL 3122073, at *7 (8th Cir. July 24, 2017).

4United States v. Workman, No. 16-1401, 2017 WL 3092174, at *6 (10th Cir. July 21, 2017).

5Herring v. United States, 555 U.S. 135 (2009).

6Id. at 144.

7Workman, 2017 WL 3092174, at *3 (citing Leon v. United States, 468 U.S. 897, 923 n.24 (1984)).

8Fed. R. Crim. Proc. 41(b)(6).

9United States v. Krueger, 809 F.3d 1109, 1120 (10th Cir. 2015) (“[T]he government seems to think we might fairly interpret § 636(a) as delegating to rulemakers the authority to give magistrate judges any power exercisable anywhere the rulemakers might choose to specify. But reading the statute in this way would render Congress's express territorial limitations pointless.”).

10Horton, 2017 WL 3122073, at *3.

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