Hacking Tor: Is it justified to protect children?

The Tor Network (“Tor”) which is also known as “The Dark Net” allows individuals to secretly browse the internet. Tor provides anonymity to the users which makes it nearly impossible for the government to trace which sites a user visits. While such network can be helpful for people in an oppressive government, studies found that it is more frequently used for criminal activity. For example, child pornographic images are one of the most requested materials. So how does the Tor work? The Tor uses an encryption tool called The Onion Router to route data through randomly assigned computers located around the world in order to mask the user’s actual internet protocol address (“IP address”). Those proxy servers that are located all over the world are called “nodes”. When a user logs into Tor, that user’s computer first pulls various nodes from the Tor server. Next, the computer will randomly choose a node in order to log into the network. This means the user is already using a different IP address before even entering Tor. Once the user is logs into Tor, the user’s information is send from one node to another and each node only communicates with the immediately preceding and following node. Each time the user’s information passes through another node it is encrypted with a new layer. The information will then exit through the last node in order to reach the target webpage. Once it exits the Tor, all encryptions are removed. To simplify it, if a person uses Computer A to access a certain site through the Tor, and Computer B is the exit node, the accessed webpage can only trace communications to and from Computer B. The webpage cannot trace any information back to Computer A.  [1]

Since the government is aware of the criminal activities through the Tor Network, it created “Trojan Horse Devices”. Such devices come in various forms such as data extraction software, port reader, or network investigative techniques. Since the cases that are currently revolving around this issue of the government hacking the Tor adapted the term network investigative techniques (“NIT”), I will focus on that device. The NIT is installed on the target website and every time a user visits the target website the NIT will send a communication to the user’s computer. That communication results in the user’s computer delivering locating data to another computer. In the most recent cases, the computer that received the information was operated by the FBI. Without the NIT, the government can only communicate with the exit computer. However, thanks to the NIT, the government can direct the communication back through the different nodes in the Tor to give commands to the user’s computer. The government has used the NIT to command the user’s built-in camera to take pictures of the user without the user’s knowledge and send those pictures back to the government controlled computers. In order to implement such NIT, the government needs a search warrant. [2]

The main issue in the present cases with the government’s use of the NIT was whether the search and the warrant violated the fourth amendment and the Federal Rules of Criminal Procedure. The fourth amendment gives the people the right to be secure in their persons, houses,…, and effect, against unreasonable searched and seizures. [3] A search occurs when the government either physically intrudes a person’s home or invades an area in which the individual reasonably expected privacy. A seizure occurs when the government interferes with a person’s property or possession in a meaningful way. Additionally, Federal Rules of Criminal Procedure 41 provides that the term property includes, among other things, intangible objects and information.  [4]

Additionally, Fed. R. Crim. P. 41(b) provides when a magistrate judge has the authority to issue a warrant. The following lays out when a warrant can be issued:

1) The magistrate judge has authority to issue a warrant in his or her own district and the person or property is also located within that district.

2) The person or property is within the magistrate’s district while issuing the warrant, but is moved outside the district before the warrant is executed.

3) In regard domestic or international terrorism, a magistrate can issue a warrant in any district.

4) The magistrate can issue a warrant to have a tracking device installed on the person or property located within the district that allows the person or property to be tracked within and/or outside the district

5) A warrant can be issued within a district where “activities related to the crime may have occurred”

The different cases dealing with the governments use of the NIT to locate individuals accessing and distributing child pornography all resulted from the same FBI operation. [5]. In 2014, the FBI started to investigate a webpage called Playpen. Playpen is notorious for hosting child pornographic material. The FBI was able to locate the administrators in Naples, Florida. However, instead of shutting down the webpage, the FBI decided to move the webpage to the Eastern District of Virginia and operate it for 12 days. [6]. During those 12 days, the government allowed thousands of child pornographic images to be downloaded. [7]

In February 2015, a magistrate judge in the Eastern District of Virginia issued the search warrant so the FBI could implement the NIT. Once the NIT was implemented, the FBI was able to locate the user’s computer, even those that were outside of the Eastern District of Virginia. [8]

The NIT enabled the FBI to seize the following information

1) The user’s actual IP address

2) A unique identifier created by the NIT that allowed the FBI to differentiate the data received from one IP address from others.

3) What type of operating system the user is running on his computer and the username of such operating system.

4) Whether the NIT has been sent to the same computer previously.

5) The computer’s host name

6) The user’s media access control address. [9]

This enabled the government to search computes all around the world. [10] Once the FBI had the location, they would request another search warrant from a magistrate located within the user’s jurisdiction to search that person’s home and computer. Page 7. The FBI’s search resulted in 137 individuals being arrested and prosecuted for accessing and distributing child pornography. Now, many defendants are challenging the FBI’s use of the NIT. [11]

Two of the individuals arrested were an Oklahoma resident named Artebury and a Massachusetts resident named Levin. Based on the findings of the NIT, an FBI agent respectively obtained a search warrant from a Judge in Oklahoma and Massachusetts which lead to the arrest of both defendants. In both cases, the defendant moved for a motion to suppress on the ground that the initial warrant issued by the magistrate in Virginia exceeds the magistrate’s authority under Fed. R. Crim. P. 41 and is thereby invalid. Both defendants argued that the subsequent warrants were direct result from the NIT warrant and; therefore, tainted and any and all evidence produced by the warrants should be suppressed. [12]

In Artebury, the government tried to argue that Rule 41(b)(1) authorized the magistrate to issue the warrant. The defendant sent electronic data to Eastern Virginia when accessing Playpen and that such data was the property seized. In contrast, the defendant argued that the FBI seized his computer with the first warrant because the NIT allowed the FBI to command defendant’s computer that was located in Oklahoma to give up confidential information. The Court sided with the defendant and held that if Artebury would have really send the information to Virginia, the FBI would have not needed a decryption tool to locate him. The court ruled that the Virginia Judge lacked authority and; therefore, the search warrant was invalid. [13]

In Levin, the government made the same argument and claimed that by accessing the webpage, the defendant accessed property located within the Virginia district. Again, the Court sided with the defendant. It pointed out that the warrant describes the place to be searched to be the computers that were accessing Playpen and that, in fact, most of such computers were located outside of the we magistrate’s district. Additionally, the Court stressed the fact that it does not matter where the server and Playpen, is located since the FBI was not searching the webpage but the individual computers. [14].

In both cases the Court ruled that the NIT warrant was not valid under current law. However, the government also argued that even if the NIT warrant was not valid, suppression of the seized evidence would not be an appropriate remedy and the good-faith rule applies.  Violations of Rule 41(b) can either be procedural or substantive. A procedural violation, for example, would be if the magistrate fails to indicate on the warrant during what time period the search is to be executed or the officer fails to leave a copy of the warrant at the defendant’s house. Such violations   do not give rise to suppression. Here, the Court found that the violation is not merely procedural but is substantive.

A substantive violation occurred because it “constituted a jurisdictional flaw”. The Virginia magistrate never even had jurisdiction to grant the NIT warrant in the first place so the search warrant was void by matter of law. [15]

Evidence gathered in connection with an invalid warrant should be suppressed if the defendant can show prejudice. In Artebury and Levin, both Court agree that if the government would have adhered to Rule 41, the search could have not occurred. Therefore, both defendant clearly suffered from prejudice and the evidence should be suppressed.

The government additionally argued that even if the NIT warrant was in violation of law, the good faith exception should hinder suppression of the evidence. The good faith exception states that evidence should not be suppressed if the officers gathering the evidence acted in good faith. In Levin, the Court focused on the experience of the FBI agent. The agent had 19 years of experience, and the Court concluded that the agent should have known that the warrant was void. [16]. The Artebury Court also found the good faith exception inapplicable because the violation of the rule can be directly traced to the judges’ lack of authority to even issue the warrant. [17].

Now after analyzing two cases that granted the Defendant’s motion to suppress evidence, it is important to point out that the Courts are split on the issue. Two judges, in Washington and Milwaukee, sided with the government and found the FBI had probable cause. The Washington court denied the defendant Michaud’s motion to suppress evidence and stated that the search was constitutional because it is not likely that a person stumbles accidentally on a site like Playpen and the violation of Rule 41 was merely technical. Therefore, the search was reasonable. [18]

In addition to whether the search was legal or not. The entire sting operation also raises an ethical dilemma. The FBI allowed the distribution of child pornography to continue for 12 days. Some argue that this is equivalent to a police officer selling the drugs to a person and then arresting such person. [19]

The cases are not only important for the accused defendants but for all of us since the legal questions raised in the cases already resulted in a push for a change of current laws.

The Court in Levin raised the argument that due to the advancement in technology a magistrate judges should have the authority to issue NIT warrants outside their own jurisdiction. Currently, there is a proposal of the Department of Justice under consideration that would grant a judge jurisdiction in such instances. [20]. The proposal will go into effect on December 1, 2016 unless Congress acts to prevent the change. [21]

The proposed Rule 41(b)(6) will grant a magistrate judge the authority to issue a warrant for the government to use remote access tools “in any district where activities related to the crime may have occurred” to access electronic storage media and seize electronic copy of the stored information. Such warrant can be granted if the media or information is located has been concealed through technological means, or in computer fraud cases, the device that contains the information has been damaged without authorization.

Supporters of the proposed change argue that this would allow for searches to be conducted where the computer to be searched is adequately described in the warrant but the location of the computer is unknown. Additionally, it would enable an investigation to take place when various computers in different districts have to be searched. [22].

I will leave you with a few question regarding the current cases and proposal to Rule 41:

1) Does the government’s goal to deter child pornography justify the means used by the FBI?

2) Is operating the Playpen page for 12 days similar to a police officer selling drugs to a person?

3) Do you believe that the Court that ruled in favor of the government really found the search reasonable or were they persuaded by the subject matter?

4) Does the proposed regulation of Rule 41(b)(6) violates the fourth amendment?

5) Is a violation of the right to privacy justified in order to protect children?

[1]U.S. v. Artebury, Case No.: 15-CR-182-JHP (R.R. 2016) at https://www.documentcloud.org/documents/2813028-Arterbury-Cleary-RR-2016.html [Page 1-3]

[2] I.d. at page 4

[3] I.d. at page 8

[4] I.d. at page 9

[5] I.d. at page 11

[6] I.d. at page 6

[7]https://www.eff.org/deeplinks/2016/09/playpen-story-fbis-unprecedented-and-illegal-hacking-operation

[8] U.S. v. Artebury, at page 6

[9] U.S. v. Levin, Case No.: 15-10271-WGY (Memorandum & Order 2016) at https://www.documentcloud.org/documents/2806358-16-4-20-Order-Motion-to-Suppress.html [page 5 footnote 5]

[10] https://www.eff.org/deeplinks/2016/09/playpen-story-fbis-unprecedented-and-illegal-hacking-operation

[11] http://www.reuters.com/article/us-usa-crime-childporn-idUSKCN0V72D5

[12] U.S. v. Artebury, U.S. v. Levin

[13] U.S. v Artebury

[14] U.S v. Levin, at page 11-14

[15] U.S v. Levin, at page 15- 19

[16] U.S v. Levin, at page 16

[17] U.S v. Artebury, at page 26

[18]https://www.washingtonpost.com/world/national-security/courts-affirm-governments-right-to-hack-child-porn-sites-to-find-criminals/2016/01/29/a929a672-c69d-11e5-8965-0607e0e265ce_story.html

[19]https://techcrunch.com/2016/04/20/federal-judge-rules-fbi-didnt-have-proper-warrant-to-hack-child-porn-site/

[20] U.S v. Levin, at page 20 (footnote 13)

[21]http://www.zdnet.com/article/fbi-says-its-hacks-are-not-malware-because-they-are-used-to-catch-criminals/

[22] U.S v. Levin, at page 20-21 (footnote 13)

 

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~ by huntmtiffany on October 23, 2016.

11 Responses to “Hacking Tor: Is it justified to protect children?”

  1. I do not believe the government’s goal to deter child pornography justifies the illegal issuance of a search warrant and the illegal execution of that illegitimate warrant to seize evidence. Our constitution has strong protections against such searches, and those protections need to be adhered to by our government. I side with the courts that found this was an overreach. I also believe that the proposed changed to rule 41 are unjustified and unconstitutional overreaches. While our constitution does not explicitly mention privacy, a whole body of constitutional case law protects privacy, especially in course of criminal proceedings.

    I have no argument against actively and forcefully finding and prosecuting those individuals that consume and supply child pornography. I do contest the practice of using technological advances to skirt longstanding constitutional protections, federal rules, and procedural requirements. Yes, these people deserve to be punished. But they also deserve the protections afforded by the constitution. Considering the agencies put in as much time as they did in order to actualize an effective Tor-based strategy to locate these individuals, I believe they can (and should) redirect that time, energy, and resources in to actualizing a clearly legal and constitutional method to locate them instead.

    I fear the proposed changes to rule 41 could have unintended consequences outside the scope of prosecuting child pornographers and the consumers of child pornography. The classic and oft employed constitutional argument of the slippery slope: if this now, what next? While many people would be sympathetic in giving very little protections for child pornographers, the application of overriding those protections would have ripple effects that reverberate throughout many aspects of our lives – especially considering so much of ourselves are now conducted online.

    On a similar but separate point, I believe those courts that overrode those protections did so because they were sympathetic to the cause of finding and punishing those interested in the proliferation of child pornography. This is a big problem. It is human nature to apply rules and laws unequally. While we may enforce a law rather halfheartedly against many types of criminals, we strictly enforce that same law against other types of criminals. We do so because we inherently view some crimes as worse than others. Admittedly, some crimes are worse than others. However, the rules used to regulate the prosecution of all crimes must be applied equally, no matter what the crime is. We, as a nation, are free to debate about and enact laws prohibiting certain activities and setting punishments for those activities. But we should not be free to apply the rules used in the prosecution of those laws unequally just because we place stronger prohibitions against certain activities.

  2. As much as child pornography is a crime that I think the majority of people would love to deter, the Rule 41 proposal would extend too much power to the government to invade people’s privacy. I think the ability of the government to hack into several computers on a single warrant would severely undermine the 4th amendment. Further, if I read the blog correctly, it stated that this was a proposal from the DOJ so it seems like a separation of powers issue as well. I think without more research into this and more details on the implications that may result, the passing of this proposal would set a very bad precedent.

    I can see how some may equate the government’s operation of the Playpen page with a police officer working uncover and selling drugs. Both involve law enforcement working undercover to catch criminals. I feel it is just more controversial because it is involving child pornography. However, I feel the operation of the Playpen page is distinguishable because child pornography is arguably a much more extreme crime and the government engaging in such illegal and lewd acts for “good” is difficult to justify. I haven’t read or heard about the FBI using minors in real life to catch sexual predators. They usually use officers who pose as if they are underage, not actual minors. Therefore, I would say it is much more difficult to justify the FBI’s operation in this case.

    Further, that is why I think the only reason the Court ruled in favor of the government and held that the search was reasonable was because of it involved child pornography. If this were a drug sting or another crime which was less revolting, then the Court would likely have favored the privacy rights argument more.

    Overall, I do not think the Rule 41 proposals are justified even to the extent of protecting children. It is not that these criminals do not deserve punishment but innocent citizens should not be subject to such a substantial invasion of people’s privacy rights. If we continue to allow the government to waterdown the protections afforded under the Constitution, then the Constitution as the “Supreme Law of the Land” seems more and more meaningless.

  3. Operating the Playpen page for 12 days, in my opinion, is exactly like a police officer selling drugs to a person. The person buying drugs from the police officer, if he didn’t buy them from the officer, would have went elsewhere to get those drugs. The same concept applies to a person who is accessing and distributing child pornography. That person would have found a way to access and distribute those pictures or videos one way or another. The fact that they got the child pornography from a police officer should not be as material of a fact.

    I believe the court that ruled in favor of the government found the search reasonable, to a certain extent. The government is trying to keep up with the new technology that continues to advance. It most likely would not have been possible for the government to find and prosecute as many people as they did, had they not used the NIT.

    The court that ruled in favor of the government was also swayed by the subject matter; how could they not be? Child pornography is a very sensitive topic that easily gets under a person’s skin. However, it is not right for a judge to let his or her emotions get the best of them when it doesn’t fully align with the letter of the law. Unfortunately, the law evolves with experience and there are many victims that are left without a remedy.

    The proposed regulation of Rule 41(b)(6) will be a violation of the fourth amendment. Every individual expects privacy when it comes to their computer, and reasonably so. Accessing someone’s computer and seizing an electronic copy of the stored information is enough to interfere with the property in a meaningful way. The intent behind the proposed regulation seems to come from a good place, preventing fraud and unearthing concealed information; however, the means to get to the end are not justified. We should not take away a person’s constitutional rights in order to obtain an outcome that the majority of society may want.

  4. It is understandable for the FBI to be frustrated in light of cases such as Levin and Artebury. They must continue to adapt and evolve their techniques to keep pace with criminals and there is a good argument that the Justice Department has slowed down investigations by failing to accommodate advances in technology. [1]. As it stands, the FBI must show probable cause to procure individual search warrants and access user data stored on different websites, [2] and the widespread use of proxy services like Tor effectively multiplies this requirement by 50 states for large operations with clients and servers in many places. In conjunction with the victimization of children, I can see how these limitations would lead a court could somewhat overlook strict adherence to Rule 41.

    I don’t think I could have done the same. It is disturbing that the FBI is going to such great lengths and it’s even worse that they have not disclosed much about their methods and they might even let some criminals go in efforts to avoid giving up too much through discovery. [3]. When the FBI is arguing that their software is not malicious and that it does not violate the 4th Amendment [4], it is too great of a flip for them to continue demanding secrecy. While I do not think the FBI went too far in operating the site to identify criminals, it was clearly an overreach for them to assume their Virginia warrant would work anywhere in the U.S.

    Violating the 4th Amendment, even to go after child pornographers, can ultimately lead to suppressing damming evidence, but that is a cost society pays for freedom. When one considers that Tor is used by many to subvert oppressive regimes [5], it is clear that we should be grateful that the 4th Amendment requires procedural hurdles to prosecute crimes in our country. It could be much worse.

    With my limited experience with the 4th Amendment, I am not confident either way that Rule 41(b)(6) actually violates the constitution. However, I would be surprised if the Supreme Court struck down its own procedural rule, especially if the rule becomes law without any major modification from Congress. The late Justice Scalia was a proponent of 4th Amendment protections. His absence, and any delay in affirming a successor, are likely to improve the Rules chances even further.

    If Congress does not act to modify, amend, or stay the proposed Rule, 41(b)(6) will become law on December 1, 2016. [6]. Since this proposed rule has the potential to dramatically alter our position on substantive 4th Amendment violations (changing the outcomes of cases such as Artebury), the issue deserves considerable attention and public debate. [7]. That is why I think the ACLU and others are correct to point out that the change is “sneaking in” through a procedural Rule which will arguably receive much less attention. [8].

    NIT has a great potential to make our lives safer but we still shouldn’t be so passive in sacrificing our procedural guarantees.

    [1] http://arstechnica.com/tech-policy/2015/07/feds-bust-through-huge-tor-hidden-child-porn-site-using-questionable-malware/

    [2] http://arstechnica.com/tech-policy/2014/03/feds-want-an-expanded-ability-to-hack-criminal-suspects-computers/

    [3] In line with Jencks v.U.S.;http://arstechnica.com/tech-policy/2016/05/judge-says-suspect-has-right-to-review-code-that-fbi-has-right-to-keep-secret/

    [4] In a brief, the FBI wrote: “A reasonable person or society would not interpret the actions taken by a law enforcement officer pursuant to a court order to be malicious…For that reason I do not believe that the NIT utilized in this case pursuant to a court order should be considered to be malware….”; http://www.zdnet.com/article/fbi-says-its-hacks-are-not-malware-because-they-are-used-to-catch-criminals/

    [5] http://arstechnica.com/security/2014/11/law-enforcement-seized-tor-nodes-and-may-have-run-some-of-its-own/

    [6] http://arstechnica.com/tech-policy/2016/04/rule-41-would-make-it-easier-for-the-government-to-carry-out-hacks/

    [7] See http://arstechnica.com/tech-policy/2014/03/feds-want-an-expanded-ability-to-hack-criminal-suspects-computers/

    [8] Id.

  5. 1. I believe so – up to a point. I do believe that the warrants used by the government to access the computers of Artebury, Levin, etc. are justified. This is because I simply do not believe that an individual has an objectively reasonable expectation of privacy when accessing child pornography or otherwise using Tor to access materials that are illegal. Beyond that, I do not believe that the government should have been able to operate Playpen for another 12 days after seizing it. Additionally, I think that an investigation should be launched to determine why this was allowed to occur. One of the reasons that many, myself included, believe that child pornography should be illegal is its inherently negative impact on those depicted. The government not only allowing the site to remain operational but also actually running the site for 12 days means that those depicted in images and videos streamed or downloaded through Playpen continue to be harmed – at the government’s behest. Without proof that this was done for an extremely good reason, I find it to be beyond despicable.
    2. No I do not believe it is, I believe it is worse by far. An individual buying drugs has the ability to make that choice for herself/himself. There is no way to know if the children depicted in child pornography are doing so voluntarily – even if they are, our law often assumes children do not have the same ability to form intent that adults do. Additionally, the damage done is inherently different. While drugs can cause psychological damage, this is far more likely to be the case where sexual exploitation is involved. Aside from the questions it raises regarding the entrapment of defendants, the damage done to the children in question could be far graver.
    3. I believe that either or some combination of both is possible. Again, I do not believe that an individual has an objectively reasonable expectation of privacy when seeking out child pornography. Any statute regarding these searches needs to be tight to ensure that those who somehow stumble across child pornography are not also prosecuted but I do believe that the warrants issued have solid constitutional footing.
    4. I think that it pushes the line of constitutionality regarding the court through which a warrant can be obtained. In truth, I am not sure why it would be difficult for law enforcement to simply communicate to the correct district court the need for a warrant and the basis for why upon determining where the actual computer is located though this might be a reflection of my shortcomings in technology knowledge. Additionally, the possible change allows for far too broad a scope of potential computers to be accessed by law enforcement. The warrant could too easily be far too attenuated from the actual crime alleged for many of those who are arrested as a result.
    5. Generally speaking, yes. That does not mean that we should forfeit all privacy rights in order to protect children no more than we should forfeit all privacy rights to combat terrorism or to win a war or to eliminate human trafficking. There is always the question of just what is appropriate in these contexts. Again, I simply do not see how one can believe that the pursuit of child pornography through a known child pornography site located in the Deep Web is a pursuit that carries with it an objectively reasonable expectation of privacy.

  6. The government’s end goal is undoubtedly for a legitimate cause. No one would agree that child pornography is a crime to take lightly. While reading the blog and the assigned reading for this week, my gut reactions were praise for the government for finding ways to access and arrest the child pornographers and being upset with the courts that would not allow the government to use the evidence obtained from NIT investigations. But, on a closer analysis, I am torn. I want the government to have the ability to catch child pornographers in whatever way they can to prevent the criminals from hiding in sites like Tor. However, technology is tricky and there must be safeguards in place to protect citizens’ rights.

    I am definitely against the government operating the Playpen page for twelve days. It is absolutely relatable to the government selling drugs to someone and then arresting that person. The government should not have to commit crimes just to catch other people committing the crime. I understand that some sting operations are set up to lure individuals to buy drugs from undercover officers or to meet up with undercover officers posing as underage girls online. But, in those scenarios, the officers are not going through the full steps of committing the crime. It is merely a bait tactic. Officers publishing child pornography online for twelve whole days is basically them perpetuating the crime. Images of innocent children were used by the government to arrest these criminals. I suppose, the devil’s advocate side of this is that although this sounds deplorable, it was done for the greater good: to catch the child pornographers. But, I cannot mentally get past my moral disagreement with that strategy in this particular scenario.

    I am not against using the NIT to investigate child pornography but I do fear that a broad sweep of NIT technology opens citizens up to searches for things much less heinous than child pornography. Really, I wonder, where do we draw the line of how much the government can track what we do and when are we actually awarded any sort of privacy? It is similar to opening up Pandora’s Box. Once the government has the green light to perform these searches and obtain search warrants from essentially any magistrate judge, the lines of privacy become blurred. Our nation prides itself on allowing citizens to have reasonable expectations of privacy in certain scenarios. The NIT would make it so that people do not know when they should have a reasonable expectation of privacy or not.

    I do not think that the proposed change to Rule 41 is intended to be a loophole to violate the fourth amendment, but I think it leaves the door wide-open to misuse and inevitable fourth amendment violations. The proposed rule change does not give any guidelines of who, what, when, or how the government can hack personal computers and download malware onto any citizen’s computer. The government would have too much discretion to interpret the rule and manipulate the rule to fit their search goals. If this proposed change is passed by Congress, the problem that I foresee happening is that the government will overstep its boundaries and the only way that it will be put back into place is through court cases setting new precedent. The issue with waiting on case law precedent is that it will be time consuming and many people with have their fourth amendment rights violated in the meantime.

  7. I believe the goal of preventing the trafficking of child pornography and prosecuting those who do justified the means used by the FBI in a moral sense but legally under the laws run afoul of Rule 41 as it currently stands. I think part of what makes me more open to using these means is that way child porn is trafficked involves distributors and users constantly adapting and trying to find soft spots in the reach of law enforcement. In my opinion it would be a good change to open up Rule 41 to allowing searches of computers even if they are outside of the issuing judge’s jurisdiction. In a world where all of the computers being investigated are connected online and the file sharing involves files transferring from server to server all around the country and world, limiting the reach of law enforcement based the criminals found in the course of the investigation being outside of the small geographic barriers of the issuing magistrate seems odd to me. If the DEA conducted a search of a drug dealers home and found a book which implicated people outside of that jurisdiction in drug dealing I would expect them to be able to use that evidence against such defendants.

    Operating the playpen page for 12 days after taking control of it is far less defendable in my view. I understand that sometimes something similar to this must happen to be able to realize who is using the service but 12 days seems really excessive to me. I know in the context of P2P the government has sometimes done similar things were they have gone after people by downloading child porn from them and also going after people who, as part of the torrenting process, downloaded it from government servers. When dealing with online platforms where observation requires some level of control over the site I understand and see some reason to allow this kind of practice but in the playpen case they could have done a better job, it just seems like they got greedy.

    I think the court was persuaded by the subject matter, child porn is terrible and so courts frequently give more leeway when the government is going after such terrible suspects. I think the reasonableness of the search does involve what the search is potentially going to find and child porn is up there in terms of the importance for the government to find and then prosecute. In that way I think some balancing of the right to privacy is justified.

  8. In my opinion the government’s goal to deter child pornography do justify the means used by the FBI. As far as im concerned the government tracking IP addresses from illegal websites and networks should be fair game given the inherent illegal nature of the conduct. When dealing with crimes such as child pornography the importance of preventing these crimes in my opinion outweighs the privacy rights of individuals using illegal technology. As an everyday law abiding citizen using the internet none of the governments tactics would ever interfere with your privacy rights. Personally i have no issue with the government infringing on certain privacy rights in situations involving activity that is inherently illegal.

    I do believe that the government operating the playpen page for 12 days is similar to a police officer selling drugs yo a person. That being said i dont have a problem with either activity if it results in an arrest or consequences for the party engaging in the illegal activity. I personally see the governments running of the page as being justified since it led to significant information that could be used to track down the persons responsible for the illegal activity.

    I do think the court was persuaded by the subject matter in finding the government search as reasonable. When dealing with such delicate subject matter that is so obviously disgusting society as a whole, some of the other rules can be bent a little to punish or prevent such conduct. I do not think the new proposed regulation of Rule 41(b)(6) violates the 4th amendment. These criminals are going through extensive steps to hide their locations due to their intent to commit criminal activity. These criminals should not be able to get off on jurisdiction issues because they were able to outsmart the system.

    Since children are such a vulnerable class of persons certain violations to the right to privacy are justified to protect children.

  9. 1) Does the government’s goal to deter child pornography justify the means used by the FBI?

    Personally, I am split on this issue. I guess it ultimately depends on what the “means” actually are that the FBI is trying to justify. I opine that one “mean” might be to prevent people from accessing child pornography. However, I also believe that another “mean” would be to prevent the creation and dissemination of child pornography in its entirety. So, if the goal of the FBI is to simply prevent people from accessing child pornography and prosecuting those who do, then the end in this case would justify the means. However, if the goal is to prevent the spread and dissemination of child pornography, then the ends in this case do not justify the means. Not only would the FBI allowing individuals to view and download child pornography for an extended period of time be unjustified, but this also does nothing to stop the root cause of child pornography. If the FBI truly want the ends to justify the means, then they should do more to find and prosecute not the individuals who access the pornography, but those who upload it in the first place.

    2) Is operating the Playpen page for 12 days similar to a police officer selling drugs to a person?

    Yes, I believe it is. However, I see nothing wrong with this practice. It reminds me of those scenes you see in movies and television shows where the police officer is working undercover as part of a drug conspiracy and sells drugs to people, then arrests them once the transaction is complete. Similar to prostitution, where a police officer solicits hookers for a night of lewd fun and then throws the handcuffs on them (actual handcuffs for the purpose of arrest, not the salacious kind).

    3) Do you believe that the Court that ruled in favor of the government really found the search reasonable or were they persuaded by the subject matter?

    I think that most courts, when it comes to delicate issues such as child pornography, are persuaded (at least somewhat) by the subject matter. We all have implicit biases and it is impossible for any of us to completely detach ourselves from what we believe is morally and ethically incorrect. In those cases, I believe that a court would go searching for any reason to rule in favor of the government, even if the defendant’s arguments are valid and sound, as a matter of law. The harsh reality is that the law (in situations like these) is pretty black and white and is not guided by a moral compass or conscience.

    4) Does the proposed regulation of Rule 41(b)(6) violates the fourth amendment?

    I am not sure that it does. However, I might also be unclear as to the actual effect of this proposal. I will agree that people have a constitutional right to be protected against unreasonable searches and seizures. However, this right does not serve as a blanket of protection. This does not mean that people can go around breaking the law and then claim the fourth amendment when they are on the verge of getting caught.

    5) Is a violation of the right to privacy justified in order to protect children?

    This is a tough question. On the one hand, there is a legitimate moral and ethical concern in regards to protecting children. However, there is also a legitimate moral and ethical concern regarding protecting any person’s right to privacy. I am afraid that if we were to start going around and saying, “Hey, it’s okay to violate someone’s constitutional right because the subject matter is pretty morally wrong and a violation is necessary,” then where will the line be drawn? Who will be the person (or group of persons) who determines what is morally acceptable to deny someone their constitutional right? There is no bright line, and any type of hard and fast rule in regards to this issue would be wholly subjective. So I guess I lean towards no. Although there is a legitimate privacy interest in regards to children, until the government can establish a general criterion for what is regarded as acceptable to violate someone’s rights and what is not, then a person’s privacy rights should be protected. I also do not think that I would like for the government to start going around and determining when it is appropriate to violate someone’s rights. This seems a bit totalitarian to me.

  10. I do not agree that the government’s goal to deter child pornography justifies the means used by the FBI. The Fourth Amendment provides citizens with strong protections against illegal searches and seizures by the government. The government in the Artebury and Levin cases illegally searched the computers and seized the information of child pornographers. In addition, the search warrants issued were invalid because the magistrate judges did not have jurisdiction over the defendants or the property to be searched to issue the warrants. This is more than a mere technical error which can be excused. This was a clear substantive issue and violation of Rule 41. Regardless of their noble mission to identify and arrest child pornographers, the government cannot override the Fourth Amendment to do so.

    I think operating the Playpen page for 12 days is somewhat similar to a police officer selling drugs to a person, but the government took it a step further. I understand the government’s interest in wanting to catch as many child pornographers as possible, but the principle still stands that it should be done within the boundaries of police protocol and criminal procedure. It seems as though the government did not only continue to operate the page as a sting operation to attract criminals, but they were also actively engaged in the criminal activity. Usually when officers pose as drug dealers to sell drugs to a person, they set up the meeting location and other logistical details but don’t actually sell drugs to the person. However in operating the Playpen page for 12 days, the government allowed thousands of child pornographic images to be downloaded by users of the site and were therefore participating in the criminal activity.

    I believe that the Court that ruled in favor of the government was more so persuaded by the subject matter. The Court has always recognized that children are vulnerable and the Court will often times act like a parent to protect children. We even see it in personal injury cases involving children. Juries will award children and their families very large judgments in cases where the child was severely injured and Courts may bend the rules finding an act to be negligent in order to provide a remedy to the harm already suffered. So in this instance, I don’t think the Court really found the searches to be reasonable. I think that the Court found that the mission to arrest child pornographers and the amount of material seized outweighed any technical or substantive error.

    The proposed regulation of Rule 41(b)(6) does not explicitly violate the Fourth Amendment, but I’m afraid that it is cutting it pretty close. The language in the proposed regulation that is alarming to me is that judges can issue a warrant “in any district where activities related to the crime may have occurred.” The government doesn’t have to be certain that illegal activity occurred and they don’t even have to meet a threshold or satisfy a burden to show that there is strong evidence that crime may have occurred in a particular location. I’m concerned that this proposed regulation will not only violate people’s privacy rights but that the government will also use it to justify what we recognize now to be an illegal search and seizure.

  11. I can see that some of you have not taken Criminal Procedure yet. I hope when you take it, you will come back and review your comments. The police have limitations on what they can do, even when a person has broken the law.

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