A number of cases have popped up from the FBI running a child porn sting for two weeks on dark net. Courts have ruled that the warrant issued wasn’t valid, while other have ruled it as valid.
The government was able to access thousands of computers, with just one single warrant. They took over servers of a known child pornography site, and kept it active for two weeks while they probed users for data, all without anyone’s knowledge.
A federal judge in Texas ruled that sending malware to someone’s computer without their prior knowledge is classified as a search, under the 4th Amendment.
“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 4th Amendment purposes,” Judge David Alan Ezra wrote in the ruling on Friday.
Sounds pretty obvious right? Well, not everyone agrees.
A Virginia Judge that a warrant wasn’t even needed for government hacking purposes:
“A defendant infected with government malware has no reasonable expectation of privacy in his computer.”
That ruling was a jump from several others, where judges declared that using Tor should give people no expectation of privacy regarding their IP address. The point of using Tor in the first place is to hide one’s actual location.
The FBI’s use of malware was definably a search, but Judge Ezra denied Torres’ motion to suppress evidence obtained by the NIT. All this is due to the fact that it can’t be proven that the FBI willfully violated Rule 41. Rule 41 is meant to keep judges from authorizing searches outside of their jurisdiction. Now, the FBI is seeking to make changes to Rule 41. It is being met with some opposition though, in spite of the recent denial of one Senators motion to stop the changes to Rule 41.
“The NIT warrant has brought to light the need for Congressional clarification regarding a magistrate’s authority to issue a warrant in the internet age, where location of criminal activity is obscured through the use of sophisticated systems of servers designed to mask a user’s identity,” Judge Ezra wrote, after he denied the motion of suppression.