Once Again, Awesome Technology Is Used for Nefarious Purposes
Have you ever been prohibited from streaming media because it was not available in your country? Anne with an E aired in Canada two months before it was available to stream in the U.S. and only a fool would wait that long to watch! Luckily, virtual private networks (VPNs) allow individuals to maneuver around restrictions that streaming services use to restrict access to domestic users. Every television addict’s favorite tool operates by masking the Internet Protocol (IP) address– a numerical label connected to a computer network that identifies user location– and allowing the selection of a different IP address from any global location. Although I am confident VPNs were primarily developed to watch Aladdin on German Netflix (pre-Disney+), VPNs and similar tools are also used by bad actors to frustrate law enforcement. What should law enforcement do when it observes criminal activity online but does not know where the behavior occurs due to the use of masking tools such as VPNs? Law enforcement must get a search warrant, of course! So… nothing really changed there, but if you are familiar with BS, you know the law never keeps pace with technology: something had to change.
Hello Fourth Amendment, My Old Friend
Under the Fourth Amendment, “no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[1] How does the Fourth Amendment apply where identities of users and location of property are concealed? The most recent amendment to Rule 41 of the Federal Rules of Criminal Procedure was added to address this question; however, the scope of searches pursuant to these warrants should be narrowed.
What Does the Amendment to Rule 41 Do?
The amendment to Rule 41 permits magistrate judges to issue warrants outside their jurisdictions for remote searches of electronic storage media and for their seizure when “the district where the media or information is located has been concealed through technological means.”[2]
Why Was the Amendment Necessary?
The amendment was written to counter the increased use of tools used to mask IP addresses including Tor, VPNs and proxy servers. Tor is a free software that conceals users’ locations from network surveillance by connecting users through a series of tunnels instead of a direct connection.[3] VPNs create an encrypted tunnel between a host computer and a user, where the internet service provider and IP address are masked. With a proxy server, all traffic routed through it appears to come from a proxy IP address. These applications are free or acquired cheaply.
The amendment was also drafted due to concern about defendant challenges to remote access search warrants. Prior to the Rule 41 amendment, the government was granted remote access search warrants to conduct investigations. The FBI employed Network Investigative Techniques (NITs)– malware used by the federal government — to virtually infiltrate three child pornography services during an investigation called Operation Torpedo.[4] In another child pornography investigation, the Playpen cases, the government used NITs to obtain over 9,000 IP addresses from users who logged onto the Playpen website. Defendants in these cases challenged extraterritorial search warrants granted by magistrate judges. The amendment was written with these challenges in mind.
With Great Power Comes Great Potential for Abuse
Although the government has authority to remotely search concealed devices and used NITs for two decades, the application of Rule 41 should be narrowed. The government should only retrieve information that is necessary to identify a specific computer– such as an IP or Media Access Control (MAC) address. Users’ search histories, emails, and access to microphones and cameras, should only occur pursuant to a warrant from the jurisdiction where the technology resides. Zac Lerner, an attorney with ZwillGen, notes that this would reduce forum shopping and eliminate different standards of scrutiny applied when one attempts to conceal their devices.[5] He states, “the capabilities authorized pursuant to Rule 41’s new exception should be limited to providing only that information the government would have had access to if [one] had not utilized anonymizing technology.”[6] As Rule 41 is presently construed, if persons attempt to shield their IP address, they can be subject to a more sweeping search than those who do not.
BS Conclusion
Although it is challenging to determine the location of masked electronic devices, the result should not be the erosion of the Fourth Amendment. What incentive do bad actors have to anonymize technology if the government uses NITs and vaguely written search warrants to collect sweeping quantities of data? Bad actors might as well conduct criminal activity on the surface web– as opposed to the dark web– and force law enforcement to obtain narrowly construed warrants in the jurisdiction where the technology resides. Do you hear that, criminals? Bring your criminal activity to the surface web; it is the best way to protect your Fourth Amendment rights!
BS
[1] U.S. Const. amend. IV.
[2] Rule 41(b)(6)(A) of the Federal Rules of Criminal Procedure.
[3] Tor Overview: https://www.torproject.org/about/overview.
[4] Kevin Poulsen, Visit the wrong website, and the FBI could end
up in your computer, Wired Magazine, August 5, 2014:
https://www.wired.com/2014/08/
operation_torpedo/
[5] Zach Lerner, A Warrant to Hack: An analysis of the Proposed
Amendments to Rule 41 of the Federal Rules of Criminal Procedure,
18 Yale J.L. & Teach 26 (2016):
https://digitalcommons.law.yale.edu/cgi/
viewcontent.cgi?referer=https://www.google.com
/&httpsredir=1&article=1119&context=yjolt
[6] Id at 38.