Second Judge Recommends To Discard Evidence Obtained From FBI Mass Hack

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FBI Mass Hack

Male judge in a courtroom with the gavelPaul J Cleary, a Magistrate Judge, is the second judge to suggest that evidence obtained in the FBI mass hack,using malware planted by the federal agency on the infiltrated child porn site PlayPen, be thrown out.

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In the mass hack case, the FBI uploaded the malware in February 2015 as part of Operation Pacifier.

On the 25th of last month, the same judge recommended for suppression of evidence (obtainedin the FBI mass hack) in a similar case.

The case involves Scott Fredrick Arterbury.

He was arrested in Oklahoma in November last year on charges of possession of content related to child pornography.

In his report, Judge Cleary stated that the Court found the network investigative technique (NIT) warrant used by the federal agency (consisting of a mass hack method) was not authorized under any of the provisions applicable as per Rule 41.

The judge noted that the warrant should be treated as not valid from the outset (void ab initio) and, therefore, suppression is warranted.

In addition, the judge stated that good-faith exception is not applicable in this case.

According to Rule 41, judges have the power to issue search and seizure warrants.

However, legal problems can crop up if the federal agency’s hack involves computers that are in unknown locations.

To Throw Evidence Obtained in the Mass Hack

Judge Cleary also pointed out several instances related to the PlayPen investigation and the decision to throw out the evidence in the mass hack case.

However, the key aspect pointed out by him was the decision of Theresa C Buchanan, Magistrate Judge for Virginia’s Eastern District, to sign the NIT warrant.

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She had the authority to sign a warrant for a search outside of her jurisdiction, but the Justice Department had claimed that the search was carried out Virginia’s Eastern District, where the government’s facility for running the PlayPen server was located.

Judge hitting gavel with paper at wooden table closeupOn the other hand, Judge Cleary agreed with the argument put forward by the defense team that the police carried out the search on the computer of the suspect located in Oklahoma, which is without any doubt outside the southeastern state of Virginia.

The decision of Judge Cleary suggestion to throw out evidence in the mass hack case is more or less the same as what Judge William G Young wrote as part of his ruling in Massachusetts.

Judge Cleary also noted in the statement that the property (Arterbury’s computer) seized in this case remained in Oklahoma at all of the relevant times.

Sometimes, a good-faith exception on Rule 41 is granted to law enforcement authorities in situations wherein an investigator is deemed to have acted upon what he/she believes is a legal warrant.

Judge Paul J Cleary stated that it is not applicable in the case of Arterbury as his house could be searched only if the rule is violated.

In this connection, it is important to note that the US Supreme Court has approved an amendment to Rule 41 which would give powers to law enforcement agencies to hack the computers of individuals who use anonymity services like Tor and VPN, irrespective of where they are located.

The changes to Rule 41 which would give powers to the FBI to hack online users who use anonymity software are likely to come into effect on December 1, 2016, if the Congress does not adopt a competing legislation.

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1 COMMENT

  1. Some confusion about this, i’ve been following these cases. In what way did the Buchanon have the authority to issue outside the state. In the Case vs. Levin judge young said that she did not have that authority, thus the warrant was void ab initio.

    Also is this article refering to Artebury? Or another defendant the judge happens to be presiding over.

    If Cleary found that the warrant was valid, are you saying the good faith application does not apply because it was executed improperly?

    As in, the warrant states that the search would be executed in Va. but he agrees with the defense that the search took place in Washington, thus good faith does not apply because the search took place outside where the warrant specified?

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