Black Friday

Judge Gives the FBI Wrist Slap – Cites Warrant Abuse

Stan Ward

Stan Ward

September 30, 2016

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.

Stan Ward

Stan Ward has enjoyed writing for 50 years. Writing has been a comfortable companion to a successful business and teaching career for him. Find him on Google+.

6 responses to “Judge Gives the FBI Wrist Slap – Cites Warrant Abuse

  1. i never done a difference between young or old, female or male, black or white as soon as the privacy is in danger.
    Pornography is a business & a tactic which allows a lot of couple earning money & privilege but, if i, i should disagree ; who could protect me against the predator or these ‘official habits’ ? No , the fbi does not & will not.

  2. I have a question which really goes to my lack of understanding about internet tracking. It is my understanding that most websites track the ip address of the person that visits that site. If you log in, they would also track who logs in. When you use a VPN, your true ISP assigned IP is disguised.

    So, the only people who would be identified would be the people who did not use a VPN or onion router. If the FBI gets a warrant to place the malware on the website server, then I’m okay with that. If the malware placed by the FBI only caught the IP addresses and username/password of those who signed into the server. Then the FBI could say ISP-ABC had these IP addresses signed on at such and such time. Get separate warrants for each ISP, and get the computer info for who had that assigned IP, and therefore get the involved person. That sounds like a huge undertaking. It would likely involve local police actually going to do the final step. But, I think I would be okay with that.

    But the FBI used that website to install malware on the computer that was signing on. I am guessing that the individual computers then contacted an FBI server and identified the computer. This would bypass VPN’s and onion routing. I’m NOT okay with that. We have privacy laws for a reason– even when they protect evil people.

    Am I right up to this point? I’m not sure I understand correctly.

    But now the man who works with abused kids kicks in. I still don’t want the FBI violating all of our privacy rights. But, there is this part of me that wants a white hacker to get all of those IP addresses and put a killer virus on their machines that wipes their pictures and leaks their names to the web. I probably shouldn’t feel that way, but I do.

    1. Hi Daniel,

      I think the FBI used a number of very questionable investigative techniques to in order to uncover the identities of suspects. In the process, the FBI broke many international and national laws, plus engaged in other dubious practices. This includes hacking foreign servers, using illegally obtained search warrants, exploiting zero-day vulnerabilities in the Tor browser (thus putting Tor users with a genuine need for anonymity at risk), and much more. The case in ongoing, but almost every day new revelations shock the security community. It is also becoming clear that the FBI is using this test case, which features the emotive subject of child pornography, to push for major increases in its surveillance powers.

  3. half of the new america (the presidential election will decide …) is very fond of this kind of entertainment so there is a lot of money & enterprises involved which the recruitment in the police/army/judge force. no one can stop this thing.

  4. So I think those that download child porn are despicable, but I don’t think that the nature of their crimes gives the government the right to use this kind of blanket approach. Imagine if this was a server that people downloaded torrent files from? How would people react then?

    As much as I don’t like these guys, they need to be protected in this instance because the methods used to catch them were illegal. Two wrongs don’t make a right, and I say that as victim of this kind of abuse myself.

    People who do these things need to be stopped, that is for certain. The real problem is, people are so horrified by their actions, no one has ever stopped to try and understand them.

    What if they cannot help what they are doing? What if they are born that way, desiring children from the time they hit puberty on? If that is their sexuality, we should be seeking ways to correct a dangerous genetic anomaly, not treating these guys as criminals, but as citizens with a dangerous disability. And until we treat it, they need a safe outlet for their urges. Because if this is their sexuality, I can no more expect them to deny themselves than I could expect any other man or woman of any sexual preference to so fully exert self-control as to deny themselves sexual experiences entirely.

    So yes, their actions are despicable, but they are people, humans, and citizens. They have the same rights the rest of us do, and if they were caught illegally, they should receive some form of protection. It’s all or nothing here.

    1. George The Man: I agree with part of your comments, but strongly disagree with others. “Because if this is their sexuality, I can no more expect them to deny themselves than I could expect any other man or woman of any sexual preference to so fully exert self-control as to deny themselves sexual experiences entirely.” That is the most dangerous statements I have ever seen on I don’t care if they have have a genetic propensity and have been brainwashed into thinking it is okay. Child sexual abuse is recognized in all civilized societies around the world as wrong. It’s sometimes defined differently (eg a few allow for sexual activity at young ages, some tribes have sexual activities as part of their coming-of-age ceremonies). But the abuse is pretty much universally despised. Child porn abusive at it’s creation, so downloading it is wrong. If someone has those urges, I do expect them to deny themselves. This denial of our desires is met all over the world. Can I prove that? Yes, because if not, teenagers would be having coitus in public on a regular basis multiple times a day. But we are not animals. We learn to control our desires. Most even learn to control those desires in a constructive manner. You are correct that these people need help. But if they refuse that help and act on their desires, there needs to be consequences.

      As far as the illegal FBI actions, throw out the arrests. You are correct that two wrongs don’t make a right. Now all that work was for not. Do it right the first time. I do have a question that I will address in a separate entry.

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