Magistrate judge exceeded authority in child-porn case

A federal magistrate judge in Virginia lacked jurisdiction to issue a warrant to deploy a computer hacking tool that enabled the government to identify a Massachusetts man as a user of an online child-pornography site, a Massachusetts federal judge has ruled.

In an investigation of the website, which operated through Tor, a network that allows users of certain Internet sites to browse in complete anonymity, federal agents seized control of its server and secretly operated the site for several weeks. During that period, Alexandria U.S. District Magistrate Judge Theresa Carroll Buchanan issued a warrant empowering the government to use a “Network Investigative Technique,” a type of malware that infects computers communicating with the site, revealing their IP addresses to investigators.

The government then obtained a warrant from a magistrate judge in Massachusetts to search a computer belonging to Norwood, Massachusetts, resident Alex Levin, whose IP address was revealed during the NIT intrusion.

Levin argued, however, that incriminating files found on his computer should be suppressed under § 636(a) of the Federal Magistrates Act and Rule 41(b) of the Federal Rules of Criminal Procedure — both which limit the power of U.S. magistrate judges to issue warrants for remote searches when the target is unknown and may be in a different state.

Massachusetts U.S. District Court Judge William G. Young agreed.

“[T]he NIT Warrant was issued without jurisdiction and thus was void ab initio,” Young wrote, granting the defendant’s motion to suppress. “It follows that the resulting search was conducted as though there were no warrant at all. Since warrantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded.”

Dismissal expected

Defense counsel J.W. Carney Jr. of Boston said the government had no evidence against his client beyond that which stemmed from the illegal warrant issued by the magistrate judge in Virginia. As a result, Carney said, the charges would likely be dismissed, assuming Young’s decision withstands appeal.

Carney also noted that the government used the illegal warrant to examine “thousands” of other computers across the country. That means that if federal judges in other districts ultimately adopt Young’s analysis, any criminal charges in those cases will have to be dismissed as well, he said.

“I’ve been contacted by numerous attorneys throughout the country who have sought our pleadings and the hearing transcript,” Carney added. “I’m informed that this is the first motion to suppress to succeed regarding this type of search.”

A spokesperson for Massachusetts U.S. Attorney Carmen M. Ortiz, whose office is handling Levin’s prosecution, declined to comment other than to say the government is reviewing its options.

Professor Robert M. Bloom, who teaches criminal procedure at Boston College Law School, said the ruling provides a good lesson to federal prosecutors on where they get their warrants. “Don’t go looking to a magistrate judge out of your district,” he said.

Bloom also said the decision might have had a broader impact had Young focused more on the use of malware and its potential limitations in a Fourth Amendment context, especially the particularity requirements of a warrant that authorizes malware.

“Instead, he focused on the procedural niceties of Rule 41,” Bloom said.

Meanwhile, Samuel B. Goldberg, a criminal defense attorney in Cambridge, Massachusetts, said the decision serves as a reminder to defense lawyers to take nothing for granted in terms of the legitimacy of a criminal investigation, right from the start.

“This is a procedural jurisdictional issue, and I think that federal prosecutors are used to having a green light when these kinds of issues come up,” said Goldberg, a former prosecutor. “It’s particularly interesting because I think a lot of defense attorneys would have assumed that what a judge could do in a situation like this, a magistrate judge could have done as well. But that clearly isn’t the case.”

Many prosecutors tend to have a “how dare you” attitude when defense lawyers seek to review discovery or other things — such as the details of a warrant — that are not usually sought, Goldberg said.

“I can see where getting some of the evidence of what happened here with the magistrate might be difficult to get without fighting for it. That said, it’s absolutely a fight you want to have,” Goldberg added.

‘Dark’ site

In February 2015, FBI agents seized control of Playpen, a website that operated from a server located in Virginia and which hosted a large cache of images depicting the sexual abuse of children.

Rather than shutting down the site, which was accessible only through the Tor network (a special browser that accesses the so-called “dark” web where users can operate in complete anonymity), the FBI operated it for several weeks in order to identify and ultimately prosecute its users.

In order to do so, the government obtained the Virginia warrant to implement a Network Investigative Technique that would transmit malware to Playpen users. The malware would then generate communication from users’ computers to the government-operated server. That communication contained identifying information, including users’ IP addresses.

Through NIT, agents determined that a particular user had accessed several images of child pornography in early March 2015. They traced the IP address to defendant Levin’s home address in Massachusetts.

On Aug. 11, 2015, the government obtained a warrant from Massachusetts U.S. Magistrate Judge Marianne B. Bowler to search Levin’s home. Agents executed the search the next day and, in a search of Levin’s computer, apparently identified eight files containing child pornography.

A grand jury indicted Levin on one count of possession of child pornography. He subsequently moved to suppress all evidence seized pursuant to the NIT warrant and the subsequent residential warrant.

Young held a hearing in March.

Void ab initio

Young found that the Virginia magistrate judge’s warrant to deploy the NIT constituted a warrant to search property outside her judicial district.

That violated the territorial restrictions of § 636(a) of the Federal Magistrates Act, which states that magistrate judges can exercise their powers only within the district where sessions are held by the court that appointed them, Young said.

Similarly, he found that the NIT warrant violated Rule 41(b), which in most cases empowers magistrate judges to issue warrants to search and seize property only within their own district.

“The NIT Warrant purported to authorize a search of property located outside the Eastern District of Virginia, and … none of the exceptions to the general territorial limitation of Rule 41(b)(1) applies,” Young said.

Young said suppression was the proper remedy, rejecting the government’s assertions that any violations were merely ministerial.