W.D.Tex.: In a Playpen case, planting software on a computer to cause it to transmit its address is “unquestionably a search”

There is no reasonable expectation of privacy in IP addresses, but planting software on a computer to cause it to transmit its address is “unquestionably a search.” Recognizing the split of authority, Rule 41 was violated, but the court declines to suppress because of the good faith exception. United States v. Torres\, 2016 U.S. Dist. LEXIS 122086 (W.D.Tex. Sept. 9, 2016):

This Court disagrees with the reasoning in Darby and Matish, and instead finds persuasive the reasoning in Michaud, a case from the Western District of Washington, addressing the NIT Warrant. 2016 WL 337263. The court in Michaud reasoned that the installation of the NIT “occurred on the government-controlled computer, located in the Eastern District of Virginia,” because the activating computer in Michaud, like the “activating computer” at issue in the instant case, never physically entered the Eastern District of Virginia. Id. at *6. The Michaud court concluded that “even applying flexibility to Rule 41(b) … the NIT Warrant technically violates the letter, but not the spirit, of Rule 41(b).” Id. at *6. Likewise, this Court finds that the “activating computer” was never physically present within the Eastern District of Virginia, and that any digital presence of the “activating computer” was insufficient to convey jurisdiction under Rule 41(b)(4).

Bolstering this argument, on April 28, 2016, the Supreme Court submitted the following proposed amendment to Rule 41(b) to the Congress:

(b) at the request of a federal law enforcement officer or an attorney for the government . . .
(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
(A) the district where the media or information is located has been concealed through technological means; or …

Letter from Justice John G. Roberts to the Honorable Paul D. Ryan and the Honorable Joseph R. Biden, Jr. (Apr. 28, 2016), www.uscourts.gov/file/19848/download. This proposed amendment, if adopted, will directly address the issue before the Court today. Until that time, the existence of the proposed amendment indicates at a minimum that there is currently ambiguity as to the state of the law.

Clearly, Rule 41(b), as it applies to electronic searches, is currently an ambiguous area of the law where reasonable minds may differ. Nevertheless, this Court finds that the plain language of Rule 41(b)(4) did not grant the magistrate judge in the Eastern District of Virginia the jurisdiction to issue the NIT Warrant at issue here. It is inappropriate for this Court to engage in a process of finesse justifying an ethereal presence of the defendant’s computer in Virginia, where the plain language of the rule as now written does not provide jurisdiction under these circumstances. As no provision of Rule 41(b) gave the magistrate judge authority to issue the NIT warrant, the warrant technically violates Rule 41.

. . .

Applying the exclusionary rule here would “exact a substantial social cost for the vindication of Fourth Amendment rights,” and could result in the suppression of a significant quantity of evidence currently being used to prosecute individuals who allegedly downloaded child pornography from “Website A” during a two-week period in 2015. See Rakas, 439 U.S. at 137. There is no evidence that the violation of Rule 41(b) was willful, that it was acquired in bad faith, or that suppression of the evidence at issue here will deter future illegality. Rather, the instant NIT warrant has brought to light the need for Congressional clarification regarding a magistrate’s authority to issue a warrant in the internet age, where the location of criminal activity is obscured through the use of sophisticated systems of servers designed to mask a user’s identity. Suppression is not warranted here, and Mr. Torres’ Motion to Suppress is DENIED (Dkt. # 23).

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