WOW, that is all I have to say up front. A federal Judge responding to motions filed in one of the Tor hidden service cases against users of the “Playpen” child pornography site found that the FBI did not need a warrant to use a Network Intrusion Tool (NIT). If you have not read Judge Henry Coke Morgan, Jr’s finding in the Playpen child pornography case you need to, find it here Judge Morgans Ruling.
After you read it come back and let’s chat….
Okay, now that you have done your light reading, let us review a few things. First, I am a huge proponent of law enforcement use of “Policeware” (for full disclosure my company received a grant from the USDOJ Bureau of Justice Assistance to build a NIT for local law enforcement’s use). Judge Morgan has done a fine job of recognizing and validating the use of these tools by law enforcement. He commented in his decision, “As noted in Levin, “NITs, while raising serious concerns, are legitimate law enforcement tools.” 2016 WL2596010, at *8.”. Judge Morgan presents, in his 58-page opinion, several serious points of interest to law enforcement investigators. After reviewing numerous motions before the Court, he concluded “The Court finds that no Fourth Amendment violation occurred here because the Government did not need a warrant to capture Defendant’s IP address,”. This decision alone is significant in that the Court felt that no warrant was needed for the FBI to deploy their Network Intrusion Tool (NIT), even though they had originally obtained one for its use in this case. Partly it was because of the nature of the tools limited identification of information from the target computer. The Defense had said that the original warrant was not specific enough, but the Judge pointed out the FBI was only seeking 7 pieces of information and specified exactly what that information was that they sought.
Judge Morgan supported his opinions with well thought out reasoning. However, this does not mean that everyone agrees. The Judge’s decision has met with much consternation by those viewing this as an overreach by government and an invasion of privacy. Mark Rumold of the Electronic Freedom Foundation complained in a recent blog posting that the decision was “…a dangerously flawed decision …”. Rumold further commented “The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all.” Well, that is a little bit of an overreach of what the Judge said. In fact, I think the Judge succinctly put that based on the architecture of the Internet and how browsers work the targets of the investigation traveled to Virginia over the Internet. This then gave the Magistrate Judge the authority to issue a warrant because the target had traveled to Virginia to access the Tor Hidden Service.
As anyone knows on the law enforcement side, law enforcement is never free to search anything and this decision did not extend the reach of law enforcement. What it did do, was to help define what technology can be used in a cyber-investigation. It also helped to legitimize law enforcement’s deployment of NIT’s and make them Legitimate law enforcement tools… This is fantastic, it is about time that law enforcement can use the technology available to them in a meaningful way to fight crime online. Although, the larger media and its audience will not recognize it, this decision is to cyber-crime investigators what the North Hollywood shootout was to patrol officers. Instead of crazies with machine guns and bulletproof vests being fought off by police officers with revolvers, this case has the chance to change cyber investigators still using Window XP into cyber-crime SWAT guys. Special Weapons and Tactics will take on a completely new meaning within the cyber-crime arena. The deployment of NIT’s will change how we collectively seek out those committing crimes on the Internet.
So what does this mean going forward? It means law enforcement can actually catch more bad guys committing crimes on the Internet. It means cyber-crime investigators can come out of the dark and become aggressive members of the law enforcement establishment. According to Judge Morgan “The Government’s efforts to contain child pornographers, terrorists and the like cannot remain frozen in time; the Government must be allowed to utilize its own advanced technology to keep pace with our world’s ever-advancing technology and novel criminal methods.”
Thank you Judge Morgan for understanding the technology, and making sense of the Internet policing front line. Sadly, at this time this is only a single Judges ruling. We can only hope that our well-reasoned and intelligent Judiciary will understand the technology and come up with similar findings in other cases.