Search and Seizure and the Fourth Amendment The modern state holds a near monopoly on the legitimate use of force (Weber 2004). With its primacy within a given set of territorial borders, the state and its coercive arms are often an incredibly powerful force. Early liberal political theory in both Britain (Locke 1796) and the United States (de Tocqueville 2004) was deeply concerned with how best to limit the immense power of the budding modern bureaucratic state. Failure to do so meant the potential for governmental overreach, excess and abuse. Within the liberal democratic tradition, the rule of law became a primary restriction on the potential power of government. Rules that are publicly known and consistently applied were to bind governments to prevent their excesses. These restrictions took, and continue to take, a number of different forms. One premier example is that of rules governing search and seizure by governments. British parliamentarian William Pitt summed up the principle nicely in an address to Parliament in 1763: “The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter, the rain may enter, but the King of England may not” (Pitt, quoted in Levy 1999, 80). As in England, so too in America. A series of intellectual debates, political events (such as the general warrant issued in the case of newspaper editor John Wilkes and The North Briton No. 45 in the colonies), and a host of other forces eventually culminated in the Fourth Amendment of the US Constitution. The final text of the amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 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.” The Fourth Amendment protects individuals within the United States from unreasonable search and seizure. Implementation of the principles embedded in the Fourth Amendment is guided by Rule 41 of the Federal Rules of Criminal Procedure. The rule precisely specifies when, and
over what, judges are allowed to authorize search warrants. Rule 41(b) details the venue for a warrant application in great detail. In 2015, at the time of the Playpen investigation, Rule 41(b)(1) authorized a magistrate judge “to issue a warrant to search for and seize a person or property located within the district.”3 While other sections of Rule 41(b) allow for the issuance of warrants outside of the magistrate judge’s district when the investigation involves international terrorism (b)(3), the use of tracking devices (b)(4) or a number of specific circumstances involving territorial embassies and US territorial possessions (b)(5), similarly explicit provision was not made in cases of child abuse imagery or for crimes involving the internet or dark web that defy traditional notions of geography and jurisdiction. The absence of such an exception was the rub. The warrant authorizing the Playpen investigation using a NIT was at variance with Rule 41(b) as it existed in 2015. The NIT warrant in the Playpen case was issued to cover the search of machines “wherever located,” yet Magistrate Judge Buchanan could only, given the state of the Federal Rules of Criminal Procedure at the time, legitimately authorize a search of devices located within the Eastern District of Virginia. The mismatch between legal rules and the technology of Tor — which is inherently cross-border, at least in its potential — resulted in a number of significant legal battles. One exemplifying case is the government indictment of Alex Levin, a Massachusetts man charged with possession of child abuse imagery in relation to the FBI’s Playpen investigation. The FBI’s NIT determined that a user with the screen handle of “Manakaralupa” was accessing child abuse content in March 2015. The user’s machine traced back to Levin’s physical address in Norwood, Massachusetts. On August 11, 2015, law enforcement obtained a residential warrant issued by Magistrate Judge Marianne Bowler to search Levin’s home. There they found sufficient evidence to charge Levin with possession of child abuse content.4 As part of his defence, Levin argued that the evidence stemming from the search conducted under the NIT warrant should be suppressed,
3
US, Committee on the Judiciary, House of Representatives, 116th Cong, Federal Rules of Criminal Procedure (2020) at rule 41 [Rules of Criminal Procedure], online: <https://www.uscourts.gov/sites/default/ files/federal_rules_of_criminal_procedure_-_december_2020_0.pdf>. (Emphasis added.)
4
United States v Levin (1st Cir 2016).
Policing the Dark Web: Legal Challenges in the 2015 Playpen Case
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