An investigation by the FBI, seeking prosecution of parties for child pornography violations, has been crimped by a federal judge for abusing the scope of a search warrant’s jurisdiction. Apparently, the FBI took the go-ahead on an investigation for one case, and applied it to a few thousand others – which is a no-no.
A warrant by a judge is only valid for investigations within that judge’s jurisdiction. The FBI flaunted this rule to ensnare thousands of computers when it only had a valid warrant for one. The FBI was attempting to penetrate and prosecute the purveyors of pornography, on a dark website called Playpen. As a result of its overreach, defendants across the country are challenging the evidence obtained through the operation.
Civil liberties lawyers are taking a brave stand in declaring the scope of the investigation to be illegal, due to the sensitive nature of the crimes in question. Nothing stirs the passions more than sex abuse involving children. But the law must be applied evenly, and yes, sometimes blindly, in order to protect the delicate balance between safety/security and personal liberty and rights.
If law enforcement is allowed to expand investigations with impunity and without proper judicial oversight and restraint in one instance, however repugnant and loathsome, it will likely be emboldened to sanction inquiries into many other areas as well. In military parlance this is referred to as mission-creep i.e. expanding the scope of an offensive operation beyond was initially authorized.
One need only look at how the reaction to the 9/11 attacks and the resulting Patriot Act has morphed into the surveillance nightmare that has ensued and engulfed us to this day.
Therefore, civil liberties groups are warning that this precedent could lead to a dramatic expansion of government hacking powers. If large-scale hacking can be granted by one judge, ostensibly for a localized search in his/her jurisdiction, it would allow the government to seek out the most sympathetic judge for the purpose of conducting a broader nationwide operation.
And with federal judges being politically appointed – not elected – the opportunity for abuse is inherent. All one has to do is look at the pendulum of the past decade, which has noticeably swung against personal privacy and freedoms.
The specifics of the case are that the FBI arbitrarily expanded the scope of a search warrant issued in the Eastern District of Virginia. The FBI tweaked the code on the site to install malware on any computer that entered a username and password into Playpen. The malware would then reveal the location of users’ computers to it.
There is another aspect to this case which looks at first glance to be a sting or entrapment of sorts, attempting to identify the IP addresses that could not normally be discerned because of the dark web. So, using the authority of just one warrant, the FBI proceeded to hack into thousands of computers all over the country. This resulted in hundreds of arrests nationwide – arrests which are now being contested, and where charges will likely be dropped.
What is worrisome is that the Supreme Court, which has more frequently become a rubber-stamp for governmental policies rather than an independent arbiter of the law, has granted great latitude to the lower courts in issuing warrants. At the request of the Department of Justice, which is, after all, merely a political extension and appendage of the administration, the Supreme Court has already approved changes to Rule 41. This a change that would remove jurisdictional limitations on magisterial warrants.
Congress, if it acts before December 31 can remove this injustice from the system. The hope is that it does so, and with enough votes to override a potential presidential veto. Because, given President Obama’s predilection for prioritizing security over privacy, such may well be required to eradicate such an abuse of judicial oversight by the FBI.