U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

Court: FBI Child-Porn Search Validated

Using a technology originally designed to protect government communications, the dark web hides all sorts of criminal activity.

On Playpen, users got access to the child porn site without detection -- so they thought. But the FBI seized Playpen and installed tracking software, resulting in hundreds of user-arrests.

A trial judge said a search warrant was invalid in one case that could have unraveled everything, but an appeals court reversed in United States v. Levin. Turn-about, as it were, was fair to Playpen users.

Playpen

In 2015, the FBI seized the server hosting Playpen. It operated through Tor (short for "The Onion Router"), which protects users' privacy online. The U.S. Naval Research Laboratory originally created Tor to protect government communications, but it is publicly available today.

After seizing control, the FBI continued to run Playpen in a plan to catch its users. The agency obtained a warrant to install software -- a "Network Investigative Technique" -- to trace back to anyone who logged on to the Playpen site.

In two years, the government had arrested about 350 users in the United States and identified more than 150,000 users worldwide. Alex Levin of Norwood, Massachusetts was one of them.

Good Faith

A district court judge said the magistrate who issued the warrant lacked jurisdiction because it authorized searches across state borders. The government appealed.

The U.S. First Circuit Court of Appeals said the FBI was faced with a "novel question" of whether it had the authority to search computers in another state. The agency presented the warrant to the magistrate in good-faith, the appeals court said, even if it it lacked authority.

"We see no benefit in deterring such conduct -- if anything, such conduct should be encouraged, because it leaves it to the courts to resolve novel legal issues," wrote Judge Juan Torruella.

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