The FBI has a sordid history of being cavalier about the Constitutional protections guaranteed the people of this country, a reputation that lingers since the days of J. Edgar Hoover. This famed “crime-fighter” believed a citizen’s constitutional protections, especially to privacy and speech, are inconvenient obstacles to crime fighting.

 

The truth is that Hoover was a pudgy, evil little troll who used the legal license of his agency to gather not only crime detection information, especially against the mafia and communists, but also to gather embarrassing information about perceived personal enemies and imagined enemies of the State, so he could use it for blackmail and extortion purposes. He was the most feared person in Washington during the nearly 50 years he ran the FBI.

 

War on Terror Hoover-esque

 

The so-called “war on terror” declared by former President George W. Bush has opened the door for a return of Hoover-type crime detection—a war whose investigation techniques have now gone far beyond the parameters of identifying suspected terrorists.

 

War on Child Pornography Generates Over Zealous Law Enforcement

 

This was evidenced in a recent federal case in Iowa. U.S. District Court Judge Robert Pratt joined two other federal judges in Minnesota and Oklahoma to suppress child pornography evidence seized by the FBI during a court-sanctioned operation to hack into computers of Tor users. During the FBI’s investigation, the Bureau received permission to operate a web site containing child pornography for several months, during which time they deployed software, known as NITs, on computers that visited a website called Playpen, regardless of whether or not the visitor chatted about illegal activity or viewed illegal material.  The NIT would then force the activated computer to send unique identifying information to the FBI.

 

Tor is a free software that prevents anyone from learning an internet user’s location and browsing habits by letting the user communicate anonymously on the internet. A federal magistrate judge in Virginia issued a warrant allowing the FBI to hack into the computers of internet users who accessed the Tor-hidden website known as “Playpen.”

 

Court Lacked Jurisdiction to Issue Warrant

 

District Judge Pratt declared this warrant invalid, specifically stating that “any search conducted pursuant to such warrant is the equivalent of a warrantless search.”

 

The website ARS Technicia reported recently that besides Judge Pratt and the two judges in Oklahoma and Minnesota, at least thirteen other federal judges across the country involved in the “Playpen” case have also found the search warrant invalid but did not take the correct step to suppress evidence seized from the illegal hacking.

 

The Playpen investigation gained momentum when the Virginia magistrate judge authorized the FBI to use a tool known as the “network investigative technique” (NIT) as a way to locate Tor users visiting the child porn site.

 

FBI Ignored Federal Law Limiting Search Warrant

 

The NIT warrant ran into immediate problems. Federal Rule 41(b) confines the reach of a search warrant to the jurisdiction in which it is issued. The FBI chose to ignore the rule.

 

In the meantime, the U.S. Justice Department has asked Congress to expand the reach of Rule 41(b) so that warrant issued in one jurisdiction is good in all jurisdictions. Congress is expected to approve the DOJ’s request by year’s end.

 

Virginia’s U.S. District Court Judge Henry Coke Morgan Jr., however, sees this issue in a completely different light.

 

Another Judge Rules No Expectation of Privacy for Computers

 

As the website, TechDirt, reported this past June, Judge Morgan does not believe the FBI even needs a warrant  to hack computers because computer users are susceptible to being hacked at any time. Morgan ruled that there is no expectation of privacy in an IP (Internet Provider) address; and, therefore, the FBI’s use of NIT to instruct a hacked computer to send identifying information to the agents did not create any constitutional concerns.

 

Morgan’s legal reasoning prompted TechDirt to respond:

 

“The world Judge Morgan Jr. prefers it clear: that law enforcement should not be bound by the constraints of legal activity and, in fact, should be allowed to deploy hacking tools simply because computers get hacked every day. It’s a judicial shrug that says the good guys should be able to do everything criminals do because the ends justify the means. Morgan Jr. explicitly states that ‘’the balance weighs heavily in favor of surveillance’ in cases like these (child pornography prosecutions) because of the criminal activity involved. The ends will justify the means in cases like these, if Morgan Jr. is overseeing them. Even if you are sympathetic to the judge’s belief that certain crimes call for more drastic law enforcement responses, the fact is that if given this judicial pass, law enforcement will not confine its use of jurisdiction-less warrants and invasive tech tools to only the worst of the worst. We need to look no further than the deployment of a Stingray device to track down someone who stole $57 worth of fast food to how this will play out in real life. [Morgan’s point of view] – if it stands – opens citizens to a host of invasive, warrantless searches.”

 

We agree with TechDirt. We have posted several pieces dealing with the FBI’s unlawful criminal investigation techniques, like operating disgusting child pornography websites to ensnare visitors to the sites (here and here), and the agency’s use of Stingray (surveillance devices that can deceive a criminal suspect’s cell phone into revealing its location), and its use of ShareazaLE (a sensitive software used to identify and track individuals using “peer-to-peer” technology to share child pornography).

 

Unlike Judge Morgan’s constitutional blessing of these kinds of surveillance techniques, most federal judges have been disapproving of them.

 

Constitution is Law of the Land

 

Edgar Hoover believed that he was the ultimate “good guy” and that good guys could employ any surveillance or other crime detection methods available to catch the “bad guys.” Hoover was a disgrace to decent, honorable law enforcement – and, unfortunately, the agency is once again reverting to the “Hoover ways” to catch the bad guys; and if he has his way, Judge Morgan will give the agency a constitutional license to do so.

 

Government surveillance is a dangerous weapon, especially when it’s controlled by law enforcement officials cut from the J. Edgar Hoover cloth. Government surveillance techniques used to identify and track suspected terrorists and child pornographers are often judge by the understandble “end” of apprehending some of the most despicable criminals.  However, we have learned from history that once law enforcement begins to violate Constitutional mandates, it is a slippery slope indeed.