Last year, the FBI used a hacking tool, the innocuously named Network Investigative Technique, to identify people who had trafficked in child pornography on a website called Playpen. Catching bad guys: Good. Remotely slipping malware—and then denying it was malware—onto citizens’ computers without warrants: Not so good.
The FBI investigation sprouted cases all over the country. Courts in different jurisdictions issued various conflicting rulings on the legality of the FBI’s actions, which allowed agents to identify thousands of people by their IP addresses using a single warrant. As Motherboard noted, some people argued that the FBI’s actions were above-board because “hacking a computer doesn’t constitute a ‘search,’ and therefore doesn’t require a warrant at all.” But last week, a federal judge in Texas ruled that the FBI’s actions definitely constituted a search under the Fourth Amendment.
The ruling was part of Jeffrey Torres’ case. Using the Network Investigative Technique, the FBI identified Torres’ IP address. Next, it subpoenaed his internet provider, Time Warner Cable, to get his identifying information, according to court documents. Then, the FBI obtained a search warrant for his premises and found, according to the documents, “at least 141 image files and 84 video files depicting child pornography,” which included “toddlers, graphic degradation of female children, and at least one video of a male infant being abused by an adult female.” Torres filed a motion to suppress this evidence, arguing it was secured during an “unlawful” search of his computer based on the FBI’s usage of the NIT. Though Judge David Alan Ezra denied this motion, he was unambiguous in his ruling on the FBI’s procedure. The 18-page decision read, in part:
[T]he 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 Fourth Amendment purposes.
So why not grant Torres’ motion? Ezra wrote that while the FBI’s usage of the NIT qualified as a search, and therefore required a warrant, there was “no evidence” that either the FBI agents or the judge who issued the NIT warrant “acted in bad faith when they respectively sought and issued” it. The judge acknowledged the “variety of conclusions” reached by courts regarding the legality of the NIT search and said the cases have “brought to light the need for Congressional clarification” regarding judges’ authority to issue such a warrant.