S.D.Tex.: SW application to hack a computer denied for particularity requirement

The government sought a search warrant to hack a computer believed to be used to commit bank fraud. The USMJ concludes that the proposed search would violate the particularity requirement of the Fourth Amendment. In re Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp. 2d 753 (S.D. Tex. 2013):

The Government’s application contains little or no explanation of how the Target Computer will be found. Presumably, the Government would contact the Target Computer via the counterfeit email address, on the assumption that only the actual culprits would have access to that email account. Even if this assumption proved correct, it would not necessarily mean that the government has made contact with the end-point Target Computer at which the culprits are sitting. It is not unusual for those engaged in illegal computer activity to “spoof” Internet Protocol addresses as a way of disguising their actual on-line presence; in such a case the Government’s search might be routed through one or more “innocent” computers on its way to the Target Computer. The Government’s application offers nothing but indirect and conclusory assurance that its search technique will avoid infecting innocent computers or devices:

Further, the method in which the software is added to the TARGET COMPUTER is designed to ensure that the [persons] committing the illegal activity will be the only individuals subject to said technology.

Aff. ¶ 17. 9 This “method” of software installation is nowhere explained. 10 Nor does the Government explain how it will ensure that only those “committing the illegal activity will be … subject to the technology.” What if the Target Computer is located in a public library, an Internet café, or a workplace accessible to others? What if the computer is used by family or friends uninvolved in the illegal scheme? What if the counterfeit email address is used for legitimate reasons by others unconnected to the criminal conspiracy? What if the email address is accessed by more than one computer, or by a cell phone and other digital devices? There may well be sufficient answers to these questions, but the Government’s application does not supply them.