Update: Scott Greenfield has a great post in response to the opinion. Do read it. I think he was politely telling me and others not to believe all the “sky is falling” alarms that were sounded in response to the opinion (such as EFF’s comments, which I had posted below).
Mark Rumold writes:
In a dangerously flawed decision unsealed today, a federal district court in Virginia ruled that a criminal defendant has no “reasonable expectation of privacy” in his personal computer, located inside his home. According to the court, the federal government does not need a warrant to hack into an individual’s computer.
This decision is the latest in, and perhaps the culmination of, a series of troubling decisions in prosecutions stemming from the FBI’s investigation of Playpen—a Tor hidden services site hosting child pornography. The FBI seized the server hosting the site in 2014, but continued to operate the site and serve malware to thousands of visitors that logged into the site. The malware located certain identifying information (e.g., MAC address, operating system, the computer’s “Host name”; etc) on the attacked computer and sent that information back to the FBI. There are hundreds of prosecutions, pending across the country, stemming from this investigation.
Courts overseeing these cases have struggled to apply traditional rules of criminal procedure and constitutional law to the technology at issue. Recognizing this, we’ve been participating as amicus to educate judges on the significant legal issues these cases present. In fact, EFF filed an amicus brief in this very case, arguing that the FBI’s investigation ran afoul of the Fourth Amendment. The brief, unfortunately, did not have the intended effect.
The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all. To say the least, the decision is bad news for privacy. But it’s also incorrect as a matter of law, and we expect there is little chance it would hold up on appeal. (It also was not the central component of the judge’s decision, which also diminishes the likelihood that it will become reliable precedent.)
But the decision underscores a broader trend in these cases: courts across the country, faced with unfamiliar technology and unsympathetic defendants, are issuing decisions that threaten everyone’s rights. As hundreds of these cases work their way through the federal court system, we’ll be keeping a careful eye on these decisions, developing resources to help educate the defense bar, and doing all we can to ensure that the Fourth Amendment’s protections for our electronic devices aren’t eroded further. We’ll be writing more about these cases in the upcoming days, too, so be sure to check back in for an in-depth look at the of the legal issues in these cases, and the problems with the way the FBI handled its investigation.