Federal Judge Approves Warrantless Hacking of Computers

June 27, 2016

Cyberspace SpyJudge Henry Coke Morgan, Jr. in the federal court for the Eastern District of Virginia reportedly supported warrantless hacking of computers as part of an FBI child pornography investigation.  The apparent scope of Judge Morgan’s ruling has drawn sharp criticism from privacy and civil liberties advocates.

The case involved is U.S. v. Matish.  This case is one of approximately 135 currently in progress targeting alleged users of the website, “Playpen.”  As part of that investigation, federal authorities reportedly covertly took control of the website and applied various “network investigative techniques” to penetrate screening systems applied by site users.  Those techniques enabled the authorities to identify the actual Internet protocol addresses of some of the site users.  In effect, the authorities hacked the website and the computers of users of the website.  The authorities obtained warrants in support of their investigation.

Matsuura Blakeley BannerMatish asked the court to dismiss the charges against him, alleging Fourth Amendment violations.  Judge Morgan rejected the claims raised by Matish.  In his ruling, Judge Morgan took the position that, even if a warrant had not been issued in this case, the FBI had the authority to apply its investigative techniques to access the computer content of the defendants.

Judge Morgan compared the use of the computer investigatory techniques to situations in the traditional environment when law enforcement authorities take advantage of a broken or flawed security measure to gain access to evidence.  The judge likened the situation to one in which police peek through broken window blinds to see what is happening in a room.

Many observers see Judge Morgan’s analysis as seriously flawed.  It seems clear that the authorities in this case did more than merely access information made accessible by a technical flaw.  Those authorities developed and covertly deployed technologies and processes that circumvent privacy measures applied by the targeted computer users.  Instead of peering through an already broken window blind, the authorities in this case created and deployed a technology that opened the window blind.

The Judge’s ruling in this case also seems flawed as it was not necessary for him to present such an expansive conclusion.  The authorities in this case apparently obtained a warrant in advance, thus it was not necessary for Judge Morgan to address the issue of warrantless use of the investigatory techniques.

By presenting such a broad authorization for warrantless use of computer hacking by federal authorities, Judge Morgan seems to have approved an environment in which the privacy and civil liberties of individuals are needlessly threatened.  Law enforcement authorities are able to conduct effective investigations through efficient use of warrants.  The judicial oversight associated with warrants is particularly important for the protection of the rights of individuals in the digital environment.