Purposefully sending infected software for criminal investigations is unconstitutional under the Fourth Amendment, a judge ruled last week.
U.S. District Judge David Alan Ezra determined that the FBI needed a warrant when it hacked Jeffrey Torres’ computer, which allegedly contained child pornography. Ezra was presiding over a case that dealt with the FBI’s investigation into the massive child pornography ring called “Playpen.”
FBI and law enforcement agencies across the country have been using different virtual tactics to try and apprehend criminals of the dark web.
Perpetrators often use the encrypted Tor browser, which obscures or conceals the user’s identity and allows anonymous communication. The FBI used a mechanism called the Network Investigative Technique (NIT), which sends malware to visitors of the child pornography site, that can decrypt the anonymity and divulge the actual IP address.
The judge ruled that this counted as a search and that a warrant, which the FBI never obtained, should be required. The judge did not throw out the evidence, though, because he contends the FBI did not purposefully violate the Fourth Amendment.
“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,” Ezra concluded in his ruling.
Civil liberty advocates appreciate this sentiment and believe it’s a step in the right direction for further defining a muddled area of law enforcement surveillance.
“This judge definitely got it right,” Mark Rumold, senior staff attorney for the Electronic Frontier Foundation, told Threat Post. “Regardless of the information the FBI got back – whether it was an IP address or piece of sensitive information – there is no question that this was a search.”
Civil liberty advocates and organizations have called for U.S. law enforcement to acquire a warrant from a judge before using malware, because they believe the use of such a practice causes the government to indiscriminately collect information of innocent people, and thus compromise their privacy.
There have been multiple cases related to child pornography crimes and the way FBI conducts the relevant investigations.
A judge in Virginia ruled in June that the FBI did not need a warrant in another case, while a judge in Denver ruled in August that incriminating evidence was inadmissible because it was acquired without a warrant.
“What we are watching now is the courts struggling with what rules should apply to this case and how to describe this type of investigation and technology,” Rumold told ThreatPost.
“I can’t think of a similar series of cases that have all the hit [sic] the federal courts at the same time. We are talking about hundreds of cases being prosecuted across the country all involving what for many judges must be pretty foreign technology,” he continued.
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