The US Federal Court does not consider personal information on a personal computer.

The history of the ill-fated Playpen site has already been mentioned on Geektimes ^{[ 1 ], [ 2 ]} more than once, however with each passing month the trial of site visitors is becoming, let's say, more and more innovative.

So, the sensational decision was made the other day, on June 23, by a federal judge of the Eastern District of Virginia. District Judge Henry Kok Morgan Jr. ruled that the FBI has the right to remove any information from personal computers that are at the suspect's home and are password protected, without a warrant. Such actions by the FBI cannot be interpreted as a violation of the Fourth Amendment to the US Constitution , and evidence obtained in this way must be taken into account by the court.


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Recall the contents of the previous series. In 2015, the FBI seized a site on the Tor network that distributed child pornography , and malware was distributed from it for two weeks , able to track the real external IP address of visitors. As a result, more than 1,300 registered users of the site were identified and criminal cases were instituted against 137 of them.

A federal judge in the Western District of Washington, Robert Bryan , in the criminal case of Jay Michaud, demanded that the FBI disclose the source code of the exploit in the interests of protection, but the FBI refused to do so . Later, a similar request for protection was also granted by a federal judge in the Eastern District of Virginia, Robert Doumar , within the framework of the case of Gerald Andrew Darby , however, equally unsuccessful .

However, at the same time, there are district judges, including those in the same Eastern District of Virginia, who took a different position in similar proceedings. In particular, on June 1, federal judge Henry Kok Morgan, Jr., in the framework of the case of Edward Joseph Mathesh, also considered the defense requirement to disclose the source code of the exploit, but dismissed it according to formal criteria. And on June 23, the same judge issued a truly fateful ruling during the same proceedings.


_{The District Court of the Eastern District of Virginia in Norfolk}

Edward Mathesh’s lawyer, Andrew Grindrod, filed a complaint about invalidation of all evidence obtained by the FBI as a result of hacking into Matish’s home computer on February 27, 2015. Having thoroughly reviewed the complaint, Judge Morgan Jr. arrived at the following conclusion .

Historically, the Fourth Amendment prohibited the entry of police without a warrant into physical objects, in particular, into residential premises. However, in 1967, a federal court found that the Fourth Amendment "protects a person, not a place," and applies to any breach of privacy that satisfies two conditions:

1. the person subjectively expected to have some privacy;
2. society recognizes this expectation as objectively reasonable.

It was later specifically clarified that a person cannot expect privacy with respect to information that he voluntarily disclosed to third parties. The violation of such “privacy” by a federal agent does not require a warrant.

Initially, Judge Morgan considered the issue of establishing the real IP address of the defendant’s computer. The FBI has identified the IP address of Mathesh without a corresponding order, using the notorious exploit. However, as it was established in 1979 , a person cannot expect privacy with respect to the telephone numbers dialed by him, since these numbers are known to third parties — the telephone company. By analogy, a person cannot expect privacy with respect to his IP address, since this address is already known to his Internet provider, as well as to the input node of the Tor network to which he is connected.



Then Henry Kok Morgan Jr. went further and spread the same reasoning to any data on devices connected to the Internet. Although it was decided in 2007 in the United States v. Heckenkamp case that a person subjectively and objectively has the right to expect privacy of data stored on his personal computer, Judge Morgan decided that over the past 9 years, the circumstances surrounding the previous decision have changed.

“In the modern digital world, you can be sure that a computer connected to the Internet will be hacked sooner or later.

[..] in 2016 it is unreasonable to expect that setting a password on the OS provides some practical protection.

In 1998, in the Minnesota vs Carter case, it was found that a police officer looking through a window through the cracks in the curtains did not violate the rights granted by the Fourth Amendment. Similarly, FBI agents who exploit a vulnerability on an unsecured network do not violate the Fourth Amendment. People using the Internet usually understand all the risks involved. ”

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Now it seems to be a problem. In fact, it’s not true that it’s not possible to connect to the Internet.

[..] in 2016 it provides any practical protection.

Thus, hacking resembles the broken blinds in Carter . 525 US at 85. Fourth Amendment rights, jd. at 103 (Breyer, J., concurring), FBI agents who do not violate the Fourth Amendment. It is not a problem. computer. People who traverse the Internet ordinarily understand the risk associated with doing so.

Thus, the data stored on the device connected to the Internet, according to the court, are not currently private.

Thus, Judge Morgan Jr. legitimized the use of any exploits to extract any information from any computer on the Internet. Without a warrant. But this is not the end. A direct consequence of such a verdict is the legalization of any data removal in general , if the device on which they are located had an Internet connection.



The lawyers of the Electronic Frontier Foundation ( EFF ) were ready to provide all possible assistance in court, and even sent Judge Morgan to his analysis of the situation as a so-called. “Friend of justice” , however, their arguments were not taken into account in the process of the proceedings. The EFF hopes that this decision of the court of the Eastern District of Virginia will be reviewed by the Court of Appeal, as a result of which it cannot be considered as a precedent in other similar cases.

What, however, seriously worries the EFF, is the current situation in the American judicial system as a whole: the courts in cases involving unfamiliar modern technologies are inclined to make decisions for unsympathetic defendants that have long-term consequences and threaten the rights and freedoms of all US citizens. The EFF promises to continue to monitor all such decisions regarding the Fourth Amendment, not limited to matters related to the Playpen. Follow the news here: www.eff.org/deeplinks