FBI running a child porn website? Internet privacy and TOR. | USA v. Henderson

I know that most of the people do not want to hear anything about child porn. But this case is important from the online privacy standpoint. This case reminds us about how powerful and technologically advanced the US government’s presence on the internet really is. FBI ran a child porn site for months!

United States Court of Appeal affirmed the district court’s denial of a motion to suppress evidence, including evidence seized in California, pursuant to a Network Investigative Technique (“NIT”) warrant issued by a magistrate judge in the Eastern District of Virginia, in a case in which the defendant entered a conditional guilty plea to receipt of child pornography.

The panel held that the NIT warrant violated Fed. R. Crim. P. 41(b) by authorizing a search outside of the issuing magistrate judge’s territorial authority. The government did not dispute that the NIT warrant exceeded the general territorial scope identified in Fed. R. Crim. P. 41(b)(1) by authorizing a search of an “activating computer” in California, and the panel rejected the government’s contention that the NIT mechanism is a “tracking device” for which out-of-district warrants are authorized by Fed. R. Crim. P. 41(b)(4).

Considering whether the violation of Rule 41(b) compels suppression, the panel agreed with the defendant that Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge’s jurisdiction to act in this case. The panel held that a warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment, and that the Rule 41 violation was a fundamental, constitutional error.

The panel concluded that the good faith exception to the exclusionary rule applied to bar suppression of the evidence obtained against the defendant pursuant to the NIT warrant.

Full Opinion at http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/23/17-10230.pdf