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Court rejects child porn case evidence FBI got through malware

Feds should have asked permission from a district judge to launch its hacking operation.
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A Massachusetts court has thrown out evidence for a child porn case that the feds obtained by using malware. Christopher Soghoian from the American Civil Liberties Union (ACLU) told Motherboard that "[t]his is the first time a court has ever suppressed anything from a government hacking operation." If you recall, the FBI took over a child porn service on the Tor network called Playpen to infiltrate pedophiles' computers from all over the world. The agency collected over a thousand IP addresses from users in the US. They then arrested a bunch of people based on their investigation, including Alex Levin, whose lawyers filed a motion to suppress: a request asking the court to disregard a particular evidence.

The lawyers argued (and Judge William G. Young of the District of Massachusetts agreed) that the operation relied on an invalid warrant. Young's order reads:

"Based on the foregoing analysis, the Court concludes that the NIT warrant was issued without jurisdiction and thus was void ab initio. It follows that the resulting search was conducted as though there were no warrant at all... Since warrantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded."

According to USA Today reporter Brad Heath, the warrant was rendered invalid, because the FBI should have asked a district judge and not a magistrate for permission to hack computers to identify Playpen's users. He added that "finding a district judge isn't hard. There are four in the same courthouse as the magistrate who OK'd the Tor hack." It's unclear why a magistrate approved the FBI's request, but we'll bet other people who were arrested based on the investigation's findings will take a leaf out of Levin's lawyers book.

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