Ninth Circuit Aligns With Other Circuits: The FBI's Playpen Warrant Was Bad, But The FBI's Faith Was Good

from the winning-by-losing dept

The Ninth Circuit Court of Appeals is the latest appeals court to find the FBI's warrant for malware deployment during a child porn investigation to be invalid, but still close enough for government work. The FBI's NIT (Network Investigative Technique) was sent to visitors of a dark web child porn site called Playpen. The hitchhiking software then traveled out of the district the server was housed in (Virginia) to send back identifying info from computers and devices all over the world.

At the time the warrant was sought, warrants were only valid in the district they were issued. Multiple courts found the FBI's malware was a search under the Fourth Amendment. A smaller subset found the extrajurisdictional search unsupported by current law and the underlying warrant invalid from the moment it was issued. Challenges to the extrajurisdictional searches have all run into dead ends at the appellate level.

The First, Eighth, and Tenth Circuits have all refused to suppress evidence, even if the courts found the search warrant invalid. The reasoning? There was no deterrent effect served by suppressing the evidence because the law changed after the warrant was issued and the malware deployed to allow the FBI to engage in extrajurisdictional searches. In essence, this is retroactive application of a law that changed after the warrant was sought, giving it the sort of blessing courts won't extend to victims of law enforcement misconduct that happened to occur before precedential decisions explicitly declared that particular form of misconduct unconstitutional.

In addition to the retroactive application of Rule 41 jurisdictional changes, these appeals courts have also granted the government "good faith." Somehow, it's believed an FBI agent seeking a warrant for a search that he knew would violate Rule 41 limits when executed wasn't the FBI rolling the dice on favorable rulings and a potential future mooting by changes to the law.

There's more of the same in the Ninth Circuit decision [PDF]. The court says the warrant was bad but the faith was good, so no harm, no foul, no suppression. (h/t Brad Heath)

We agree with Henderson that Rule 41(b) is not merely a technical venue rule, but rather is essential to the magistrate judge’s authority to act in this case.


The Federal Magistrates Act, 28 U.S.C. § 636, defines the scope of a magistrate judge’s authority, imposing jurisdictional limitations on the power of magistrate judges that cannot be augmented by the courts.


Relevant here, § 636 authorizes magistrate judges to exercise “all powers and duties conferred or imposed” by the Federal Rules of Criminal Procedure. 28 U.S.C. § 636(a)(1). In turn, Rule 41(b) has been asserted as the sole source of the magistrate judge’s purported authority to issue the NIT warrant in this case. But, as we have explained, in issuing such warrant, the magistrate judge in fact exceeded the bounds of the authority conferred on magistrate judges under Rule 41(b). Thus, such rule plainly does not in fact confer on the magistrate judge the authority to issue a warrant like the NIT warrant. Without any other source of law that purports to authorize the action of the magistrate judge here, the magistrate judge therefore exceeded the scope of her authority and her jurisdiction as defined under § 636.

Thus endeth the bad news for the government -- bad news severely tempered by the fact the government still gets to keep its evidence. Even though the court recognizes the warrant was invalid the moment it was signed, it still gives the government points for effort. The Ninth says it's ok for law enforcement to rely on invalid warrants, so long as they've been signed by a magistrate. And good faith or not, the court says there's no reason to suppress the evidence because the house always wins there's no future misconduct to deter.

[T]here is no evidence that the officers executing the NIT warrant acted in bad faith. “To the extent that a mistake was made in issuing the warrant, it was made by the magistrate judge, not by the executing officers.”


Further, suppression of the evidence against Henderson is unlikely to deter future violations of this specific kind, because the conduct at issue is now authorized by Rule 41(b)(6), after the December 2016 amendment. The exclusionary “rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations,” Davis v. United States, 564 U.S. 229, 236–237 (2011), and we see no reason to deter officers from reasonably relying on a type of warrant that could have been valid at the time it was executed—and now would be.

With four circuits weighing in and reaching the same conclusions, it seems unlikely any further appellate challenges will upset the FBI's malware apple cart. And if the same conclusions continue to be reached, there will no compelling reason for the Supreme Court to weigh in. Add to that the post-facto codification of the tactics used by the FBI in this investigation and you've got dozens of unconstitutional searches being laundered into Fourth Amendment compliance by courts unwilling to penalize the FBI for overstepping its bounds.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, 9th circuit, doj, fbi, good faith, jurisdiction, nit, playpen, rule 41, warrants

Reader Comments

Subscribe: RSS

View by: Thread

  1. This comment has been flagged by the community. Click here to show it
    I C Thruitt, 24 Oct 2018 @ 12:54pm

    @ "unsupported by current law" -- NO, a mere Court Rule.

    You are FLATLY WRONG that was some violation of black letter Law.

    Just hover your mouse over the links: Techdirt (also) previously stated that was a MERE Court Rule, NOT The Law as such.

    There's NO contest over the evidence, NOR law as such, ONLY the Court Rule. It's extreme legalism to claim these persons should be let off.

    In fact, FBI properly sought warrants in good faith and no one foresaw the consequences of the Internet that some would likely be outside the physical boundaries of whatever court. Actually, of course the whole United States is one Federal jurisdiction, and the Internet TOO. It cannot work any other way. (So long as are nations, and Masnick IS a Globalist who wants to end national borders. His position on topic is entirely consistent with that.)

    By your notions, NO technology as required for the Internet could be used without search warrants in every possible jurisdiction. That is stupid, but typical of the overweening legalism that you favor.

    Your legalisms always favor the admittedly guilty, trying to get them off on sheer technicality. But shielding the guilty is not the purpose of Law. This is LONG established principle. Just seems new to you kids who watch TV and think that technicalities can get you off even if outright criminal. Don't try that in Court, judges see right through it.

    Continuing rants on this actually shows you favor child pornography. If had your way, it'd be easy to dodge the law so long as bad luck didn't land you in same physical jurisdiction with the server.

    Now, Masnick: FOUR Circuit Appeals Courts have agreed. The lower courts got it wrong, but not with bad intent, either, surely knowing would go on up out of their authority to change the Court Rule and be clearly resolved. -- But how many more times are you going to claim that actual Federal Judges are entirely wrong and you're right that downloaders of child porn should be let off on a mere Court Rule?

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.