EFF to Court: FBI Search Warrant That Fueled Massive Government Hacking Was Unconstitutional

["David Farber" <farber () gmail com>]

FOR IMMEDIATE RELEASE: FRIDAY, FEBRUARY 10, 2017
Contact:
Mark Rumold
Senior Staff Attorney
mark () eff org
+1 415-436-9333 x137

Andrew Crocker
Staff Attorney
andrew () eff org
+1 415-436-9333 x139

FBI Search Warrant That Fueled Massive Government Hacking Was Unconstitutional, EFF Tells Court
Appeals Court Should Find Warrant Violated Fourth Amendment Protections

BOSTON—An FBI search warrant used to hack into thousands of computers around the world was unconstitutional, the 
Electronic Frontier Foundation (EFF) told a federal appeals court today in a case about a controversial criminal 
investigation that resulted in the largest known government hacking campaign in domestic law enforcement history.

The Constitution requires law enforcement officers seeking a search warrant to show specific evidence of a possible 
crime, and tie that evidence to specific persons and places they want to search. These fundamental rules protect people 
from invasions of privacy and police fishing expeditions.

But the government violated those rules while investigating “Playpen,” a child pornography website operating as a Tor 
hidden service. During the investigation, the FBI secretly seized servers running the website and, in a controversial 
decision, continued to operate it for two weeks rather than shut it down, allowing thousands of images to be 
downloaded. While running the site, the bureau began to hack its visitors, sending malware that it called a “Network 
Investigative Technique” (NIT) to visitors’ computers. The malware was then used to identify users of the site. 
Ultimately, the FBI hacked into 8,000 devices located in 120 countries around the world. All of this hacking was done 
on the basis of a single warrant. The FBI charged hundreds of suspects who visited the website, several of whom are 
challenging the validity of the warrant.

In a filing today in one such case, U.S. v. Levin, EFF and the American Civil Liberties Union of Massachusetts urged 
the U.S. Court of Appeals for the First Circuit to rule that the warrant is invalid and the searches it authorized 
unconstitutional because the warrant lacked specifics about who was subject to search and what locations and specific 
devices should be searched. Because it was running the website, the government was already in possession of information 
about visitors and their computers. Rather than taking the necessary steps to obtain narrow search warrants using that 
specific information, the FBI instead sought a single, general warrant to authorize its massive hacking operation. The 
breadth of that warrant violated the Fourth Amendment.

“No one questions the need for the FBI to investigate serious crimes like child pornography. But even serious crimes 
can’t justify throwing out our basic constitutional principles. Here, on the basis of a single warrant, the FBI 
searched 8,000 computers located all over the world. If the FBI tried to get a single warrant to search 8,000 houses, 
such a request would unquestionably be denied. We can’t let unfamiliar technology and unsavory crimes lead to an 
erosion of everyone’s Fourth Amendment rights,” said EFF Senior Staff Attorney Mark Rumold.

EFF filed a brief in January in a similar case in the Eighth Circuit Court of Appeals, and will be filing briefs in 
Playpen cases in the Third and Tenth Circuits in March. Some trial courts have upheld the FBI’s actions in dangerous 
decisions that, if ultimately upheld, threaten to undermine individuals’ constitutional privacy protections over 
information on personal computers. 

“These cases will be cited for the future expansion of law enforcement hacking in domestic criminal investigations, and 
the precedent is likely to impact the digital privacy rights of all Internet users for years to come,” said Andrew 
Crocker, EFF Staff Attorney. “Recent changes to federal rules for issuing warrants may allow the government to hack 
into thousands of devices at a time. These devices can belong not just to suspected criminals but also to victims of 
botnets and other hacking crimes. For that reason, courts need to send a very clear message that vague search warrants 
that lack the required specifics about who and what is to be searched won’t be upheld.”

For the brief:
https://www.eff.org/document/us-v-levin-eff-amicus-brief

For this release:
https://www.eff.org/press/releases/fbi-search-warrant-fueled-massive-government-hacking-was-unconstitutional-eff-tells


 

 
About EFF

The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded 
in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work 
to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF 
is a member-supported organization. Find out more at https://eff.org.



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