- The Washington Times - Saturday, June 25, 2016

The FBI didn’t need to obtain a warrant before investigators hacked the computer of a man suspected of viewing child pornography, a federal judge ruled Thursday.

Attorneys for defendant Edward Matish had asked U.S. District Judge Henry Morgan to dismiss evidence that was collected by a piece of software deployed by the FBI through Playpen, an underground child porn website that was briefly under the government’s control in early 2015.

After seizing the website and arresting its operator, the FBI kept Playpen up and running from February 20, 2015 through March 4, 2015. In the interim, the FBI secretly gathered information about its users by surreptitiously using a tool that let investigators see the IP address and other unique information each time an individual logged-on to the site.

Through the use of its “network investigative technique,” or NIT, authorities have been able to bring charges against at least 137 suspected Playpen members, including Mr. Matish. His attorneys said evidence gathered by the tool should be suppressed in court, however, since a search warrant specifically targeting Mr. Matish wasn’t acquired when investigators hacked into his computer.

Weighing in earlier this week, Judge Morgan defended the FBI’s right to conduct the warrantless hack by ruling that Mr. Matish had no reasonable expectation of privacy in his IP address.

“The court finds that Defendant possessed no reasonable expectation of privacy in his computer’s IP address, so the Government’s acquisition of the IP address did not represent a prohibited Fourth Amendment search,” the ruling reads.

“Additionally, while the Court finds that the Government did not need a warrant before deploying the NIT, the Court recognizes the need to balance an individual’s privacy in any case involving electronic surveillance with the Government’s duty of protecting its citizens. Here, the balance weighs heavily in favor of surveillance,” Judge Morgan added. “The Government should be able to use the most advanced technological means to overcome criminal activity that is conducted in secret.”

The ruling was immediately denounced by privacy proponents, including Mark Rumold of the Electronic Frontier Foundation, a California-based digital rights group. Mr. Rumold described the judge’s opinion as “a dangerously flawed decision,” and said the implications are “staggering.”

If the ruling is upheld, Mr. Rumold wrote Thursday, then “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,” he added.

“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.”

Both Mr. Matish’s attorney and a Department of Justice spokesman declined to comment when reached by Reuters this week. The case is scheduled to go to trial this fall in federal district court in Newport News, Virginia.

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