Fourth Circuit Ducks Tough Questions in Online Tracking Case; OK’s FBI’s Use of Malware to Track Darkweb Users

US v. Robert McLamb (No. 17-4299)

McLamb challenges the district court’s order denying his motion to suppress evidence of child pornography contained on a hard drive recovered at his home. The FBI obtained the evidence in the course of its investigation of a child pornography website called “Playpen,” a hidden services message board located on the “dark web.” The dark web is a collection of encrypted networks providing strong privacy protections to its users.

After locating and seizing the Playpen servers in February 2015, the FBI sought a warrant to deploy the Network Investigative Technique (“NIT”) to locate users accessing the website. The NIT is a computer program (much like malware) designed to surreptitiously install itself on target computers and collect identifying information from those computers. A federal magistrate judge in the Eastern District of Virginia issued the warrant, authorizing the FBI to put the NIT on the Playpen server, such that it would infect the computers of the users who anonymously accessed the site. The NIT identified thousands of computers across the world. After the NIT identified Appellant as one such visitor, the FBI seized Appellant’s hard drive and charged him with receipt and possession of child pornography.

The Fourth Circuit declines to take on the thorny, complicated issues that are presented here, and instead falls back on Leon’s good-faith exception, holding that “even if any of these alleged shortcomings amount to constitutional violation, suppression is not an appropriate remedy.” The Court notes that three other circuits have similarly ducked the question by relying on LeonSee United States v. Horton, 863 F.3d 1041 (8th Cir. 2017); United States v. Levin, 874 F.3d 316 (1st Cir. 2017); United States v. Workman, 863 F.2d 1313 (10th Cir. 2017).

A disappointing punt by the Fourth Circuit, particularly in light of the “cutting edge investigative techniques” employed here. The Court is comfortable that suppressing this kind of evidence would not produce “an appreciable deterrence on law enforcement.” One wonders what effect a green-light from four circuits will have.

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