FBI's Tor pedo torpedoes torpedoed by United States judge A ruling by a US federal judge could unravel as many as 1,200 criminal prosecutions of alleged pedophiles by the FBI. Massachusetts District Court Judge William Young today declared that the magistrate judge who issued a warrant authorizing the FBI to infect suspects' PCs with tracking malware lacked the proper authority to do …
Put simply, dear FBI please remember that while ordinary criminals are allowed to indulge in 'trying to weasel or more accurately shyster your way around these little scraps of paper called the Constitution and Bill of Rights', others especially you Mr FBI are not allowed such freedom.
Next time get the slim bags bang to rights.
There fixed that one for you.
To be fair they could have just infected the machines without asking and faked the source of the intelligence later, like they have with the Stingray phone trackers.
They asked for and got a warrant, so they were at least trying to comply with the law. They just screwed up and asked the wrong judge, if they had asked the right one they would have been fine.
It was a screw-up, not a deliberate attempt to circumvent warrants, IMO.
The point here is NOT the FBI, it was the judge who signed a warrant that was outside of his jurisdiction ... that is definitely the culprit, not so much the FBI .... I mean, the judge MUST BLOODY WELL KNOW THE LIMITS OF HIS JURISDICTION ... I guess it's just another elected idiot who never made it past Primary School ... not so sure how the legal system works in the US, I do know for sure, though, that a judge in the UK, France, The Netherlands, or Germany who signs a warrant covering parties outside of his jurisdiction without amending the warrant accordingly and notifying the requester gets into SERIOUS trouble ...
He's a judge, not an IT guy. Heck, he probably has to call his niece when his iPhone acts up. I also assume the Feds picked a lenient judge and went in and said "look we need this warrant to nab some pedo. All we're going to do is install some software on his machine to track him" the judge isn't necessarily going to understand that the pedo in question could be anywhere especially if they come to him just before his scheduled tee time as he's trying to get out on the links.
a_yank_lurker
A question: "Do NOT federal (or as you seem to prefer feral) officials take an oath to protect, and defend the Constitution, and faithfully execute the laws of the United States??"
Because, if that is true, then aren't those federal officials who violate the Constitution be guilty of treason?? IIRC, since the USofA is at war somewhere then treason during times of war is a death penalty case. Try them for treason, and if found guilty, then give them the appropriate sentence.
Root problem is that judges and courts have geographically-based jurisdiction, and of course the Internet isn't geographically-based.
Additionally, in this case, it's this entire united 'states' thingy, where the individual states have far too much power. Them giving up on the Monarchy was a huge mistake.
A solution might be either a court with jurisdiction over the entire (USA) Internet, or a SCOTUS ruling to define the applicable jurisdiction, perhaps based on the address of the server itself.
>Them giving up on the Monarchy was a huge mistake.
You got my down-vote because, in the Middle Ages, a monarchy made a lot of sense, not such much since the 17th century, though. Yes, we still have some surviving monarchies in Europe, with unelected consanguineous cretins (hereditary BS) holding on to this or that power knob, treading all over democracy. Funny, that inhabitants of those nations keep trying to give us others (democratic republics) democracy-lessons ... Britain, YES, I am looking at you ...
Thanks for the laugh, though!
@Hans 1: Yes, from Blighty, how is that democracy of yours going in the US? You know, the one you keep trying to force on the rest of the planet at the end of a gun barrel whilst the fabric of your society slowly decays amidst your crumbling financial empire? At least Britain knew when to call it a day whereas the US seems to want to go broke fighting the inevitable.
"Root problem is that judges and courts have geographically-based jurisdiction, and of course the Internet isn't geographically-based."
Those in the FBI who are in the habit of writing trojans which they subsequently install on suspects' systems probably ought to understand the Internet and the laws pertaining to obtaining evidence, warrants, etc,
Your post indicates a complete ignorance of the US and it's basic legal organization.
The US is a collection of states, much like the EU is a collection of small countries. Would you want Brussels to be able to tell Wales to do something because France wants it?
Our founding document, the Constitution, explicitly relegates all authority not specifically assigned to the Federal government to the individual states. It's the 10th Amendment.
In this case, you have a judge who didn't understand the extent of the warrant he was signing. And that is laid on the Fibbies whobasked for the warrant. Due diligence would require them to explain that until they have the IPs of the suspects, they have no clue what their geographical location is.
The only way they could have pulled this off is if the actual darknet site was hosted on a server in that judge's jurisdiction.
Which is just the sort of thing that is going on at the moment.
We joined a small trading union. Very few ordinary people realised at the time what the *published* aims of the "4th Reich" were. And are.
O'Bambi - When you're a guest over here you're a guest of Her Majesty and ALL her people - - not shiny Dave's latest pathetic mouthpiece.
So keep your grubby mouth out of British Constitutional Politics. Your own miserable legacy should be enough for your over inflated ego.
Put it another way if you still don't understand yet: How would YOU feel if you were running for a second term right now and Shiny Dave sent his sidekick Osbo over to the US to support D. Trump Esq and diss you something rotten??
If they had written their tool to simply display an advert in the web browser, pulling a small image file from their servers while posting the machines MAC address to the server I think the FEDs would have got away with it. No, your honor - we didn't search their machine - we just served them an advert.
pulling a small image file from their servers while posting the machines MAC address to the server
1. MAC addresses are not included in HTTP requests
2. Browsers do not offer MAC address information to websites
3. Tor acts as a local network proxy, so the browser wouldn't know what MAC address was being used
4. MAC addresses are arbitrary and can be changed on a whim by the user
The FBI already owned the server in question, so they already had all the information normal browser usage divulges.
@ Bob Wheeler
Most modern network drivers allow you to change the MAC address within your OS. No need to change hardware.
This all happened when network hardware vendors started recycling MAC addresses. All of a sudden, it was theoretically it's possible to have duplicate MAC addresses on a network. Very, very unlikely, but because of this, the ability to change mac addresses was added to drivers.
Back in '98 I and two colleagues were building new desktops with FreeBSD (over the wire from Sun hosting servers :)
Each time one of us started the build process, one of the others' borked. Turns out all three machines were shipped with NIC's that had identical MAC addresses.
What are the odds of that eh?
>Turns out all three machines were shipped with NIC's that had identical MAC addresses.
>What are the odds of that eh?
Quite high if you buy cheap clone NICs :-)
(Speaking from experience. That's how I learnt how easy it was to set the local Mac address - we used to set a fairly random one - exept the last 4 digits were the users phone number..)
One of the things they teach you in law school and the training academy of every LEO in the USA, is what kind of judge is needed for what level of search.
The Feds screwed up. They should have gotten another warrant before they went outside the boundaries of the warrant they had. And if they didn't know the difference they shouldn't be in law enforcement.
Given other warrants and court orders the FBI have gained, I suspect that they asked this particular magistrate because they knew that one would say yes.
And didn't ask the correct judges because they were unsure of which answer they would give.
Otherwise we're expected to assume outright stupidity on the part of the FBI.
Go on FBI, are you lawbreakers or idiots?
Part of me wonders if the FBI did this deliberately, in order that a "think of the children!" outrage could cause a "yeah the FBI violated the constitution on a technicality but these are REALLY AWFUL PEOPLE so we'll let them get away with it" exception made that they could use in later cases as a precedent, thus inexorably weakening constitutional protections.
Only a kiddy-fiddler-supporting scumbag could disagree, right?
Drip drip drip.
Judicial rulings can make surprisingly entertaining reading in a bland sort of way. Especially the polite, indirect ways they go about telling the losing party that they're basically idiots. I even learned a new word, "improvident" (which it would be to extend the Good Faith exceptions to completely invalid warrants.)
On a more serious note, I do have a certain amount of sympathy for the government's argument that there needs to be some way to obtain a warrant against a computer hiding behind Tor, but it doesn't sound like they made their best attempt here, not going to the right kind of judge. And in any case, they are bound by law as it stands, not what it should be, just like the rest of us.
So you are you saying, if you visit dodgy websites (and let us all be clear it was a dodgy website) you have to be careful what you might catch?
Is there anyone on here or for that matter in much of the wider world who did not know that?
Worse still many more normal web sites also harbour very dodgy adverts that make ad suppressing software almost mandatory these days.
>So you are you saying, if you visit dodgy websites (and let us all be clear it was a dodgy website) you have to be careful what you might catch?
They can plant the malware to open a browser window to dodgy website to get you into jail, all they need is a waterhole - a torrent site ... you think you got Rocky IV (or whatever) when in effect you got a specially crafted vid file with malware .... and end up in jail because, well, the feds found child-p0ги0 on his box ...
Here they claim that they served the malware EXCLUSIVELY from that website, but, who knows ? Also, imagine, somebody got onto that site because his/her system was infected with malware that opened a browser window to that site ... which was left open for hours as the system was un-attended ... then a windows update install forced a reboot ... the bloke does not even know his computer was connected to that website for hours ...
All this is a dangerous precedent, and means the FBI is putting businesses and the public at risk because they know of unpatched vulnerabilities that ARE USED IN THE WILD [WILD WEST].
Please FBI, write a nice open letter to all of those traced under this arrangement. It should address the recipients in a nicely worded open letter through all major news outlets explaining that because of a legal 'misstep' they will not be prosecuted for their kiddie porn watching activities.
The FBI should also say that they are very sorry for not being able to proceed with further action at this time.
Vindictive bastard aren't you!
Ever heard of innocent until proven guilty or does the very mention of something you find distasteful turn off all your critical faculties? I fear for the paediatricians living in your area, they must be terrified to go out at night!
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"The FBI clearly messed up and need a telling off, but it can't be in the public interest for this many convictions to go down on a technicality."
That technicality might one day protect you against a false accusation.
Along with "if you've nothing to hide"* we keep hearing "nobody is above the law". Well, that one is right, nobody should be above the law and that includes the law enforcers.
*Which is too close to abandoning the presumption of innocence and should be treated with the contempt it deserves.
Is it not possible to get a retrospective warrant by presenting the same evidence to a different judge and asking him to grant it?
No. The equivalent would be the cops breaking down your front door and searching your house. And then going back to the judge asking for a warrant because of what they found. The warrants have to more specific than "anything illegal" or "contraband". There's been a couple of cases where the cops searching for (as I recall) drugs found evidence of other crimes and were unable to prosecute those other crimes on the illegal evidence.
> Is it not possible to get a retrospective warrant by presenting the same evidence to a different
> judge and asking him to grant it?
No, that's the point of a search warrant. You have to have evidence beforehand to justify the search, otherwise the search is invalid and any evidence (including from warranted searches that came from stuff found in the warrantless search) is invalid.
It is not in the public interest fro law enforcement to act outside the law.
Interestingly*, in the UK there might be a way for this to happen, because we do not have the doctrine of "fruit of the poisoned tree" - it is up to the individual judge to decide whether illegally gathered evidence can be submitted at trial. Also, the last bunch of tossers in government got rid of the rule against double jeopardy, so people accused of things like this but found not guilty can never be sure that they won't get a knock on the door in the future to be arrested for the same crime - though the evidence so far is that juries don't like this and tend to acquit again if it comes to court.
*This should be pronounced as "wrongly".
They can't even get the simple things right, like asking the right person for a warrant.
No wonder they suddenly found they were able to access the mysteriously locked iPhone.
And the unfortunate thing is it sounds as if there were a large number of people who should be imprisoned but are now not due to their error. Not good. Do things right in future. Simple things. Simple steps.
It doesn't need Sherlock Holmes.
Not to be too pedantic, but...
In A.C. Doyle's stories, Mr. Holmes and Dr. Watson rather regularly and flagrantly committed searches which were noted on more than one occasion, by officials of the law no less, to have been far more than the law would have permitted the officials to conduct. Even in Victorian times, there were notions that a person should be free from unreasonable search, after all.
Of course, since Holmes and Watson were the heroic protagonists of the stories, they never received official censure for such actions, nor did they ever watch a guilty man walk free because the evidence against him was deemed inadmissible because it had been gathered extrajudicially.
At least, not that Dr. Watson ever published......... >_> <_<
Also, in later adaptations, this comes up from time to time. Memorably, in Elementary, Holmes and Dr. Watson are hauled up in front of a judge for an evidentiary hearing about how suspiciously often they find doors "open" instead of securely shut (let alone locked,) which couldn't possibly have any connection to the fact that these are people who religiously practice lockpicking as a hobby and carry latex gloves on their persons at all times.
I love how people miss the big picture and want to damn the FBI. Yeah, the FBI screwed up here, but they do many things everyday which keep most of you moronic parrots safe. Apparently, everyone who wants to damn them never makes mistakes, ever.
To say they did it on purpose or used a "yes-judge" is just ignorant.If you can't figure out why, then perhaps you should go work out your brain or attempt a crossword puzzle.
The big picture is the fact these gross f-ing child pornographers and supporters could get released to continue conducting these acts. One day... if you have a child you might see what is really important here.
I do have children. Nevertheless, the law is weighted by design to sometimes let the guilty go free in preference to not convicting innocents. Even if the word paedophile is thrown in there.
ITEM- The FBI ran a CP server for two weeks
...now this could possibly be justified by results; but it's an example of the "it's alright because it's us doing it" attitude that have led to federal agents committing every crime under the sun. Gun, running, drugs, identity theft...you name it. It's not a good starting place.
ITEM- The FBI put software on the computers of the visitors to the site.
Now this software could have done *anything*. They could easily have infected users of another site to drive the traffic to their CP site. A few GET requests in a self-deleting script, and you have an instant official paedophile with a browser history just oozing with incriminating evidence. Not saying that's what happened; but if you wanted to nail a few hundred people that were pissing you off or you just didn't like the look of then there are very few easier ways. Certainly not one that is as guaranteed to totally fuck the life of an accusee. When you're looking at accusations of this magnitude; it is also important to look at the 'big picture' and consider the ethics of the accusers.
ITEM- The FBI didn't have a warrant for what they were doing and thus rendered the entire exercise pointless.
If the accused are innocent they just better hope the FBI's incompetence doesn't extend to letting the details slip because if that happens they are fucked anyway. If the accused are guilty they are now warned and will be harder to prosecute in the future.
The one missing the big picture, Aodhhan, is you.
Rule of law and vital doctrines, such as the Fruit of the Poisonous Tree, cannot, MUST not, be subject to being thrown out because the nature of a crime is shocking or especially heinous. Doing so erodes the very foundation of our judicial system, which is already in an extremely sorry state.
If this is allowed to stand, the entire concept of judicial jurisdiction will go out the window. Judge-shopping will become insane, and suddenly warrants for very terrifying, broad-reaching moral-panic searches with nationwide scope will be being signed by myopic backwater Louisiana judges who think that Strom Thurmand (the last sitting congresscritter who was an open advocate of segregation) was a good man but who was too soft. You'll have technology-related warrants that would be laughed out of court by any judge with any modicum of understanding signed by half-senile 90+ year old judges who consider punch-cards to be newfangled but who were elected because they've been the judge in their county since the days of the voters' grandparents and most of them know him by name because he presides over the county faire' annual hog-wrestling competition.
Perhaps if the FBI lawyers hadn't been so distracted trying to set precedent with the high-profile iPhone cracking case they could have spotted this obvious uckfup in the making.
And while having no sympathy for pedophile scum, there's a small discrepancy in the FBI's expectations (200 000) and their haul (1300). Again.
As for the judge, it is unrealistic to expect a human being to have pinpoint knowledge of all laws, and we do not know what the FBI representative(s) said to justify the warrant. Disappointing that it didn't occur to the judge to question jurisdiction, but ultimately the blame for this sits in the FBI's court from my seat in the stands.
Federal judges, as in this case, are appointed by the President with the advice and consent of the Senate. Many state and local judges are elected, most subject to a requirement that they completed law school and passed the applicable bar examination. Neither process guarantees that a judge is well qualified or that a well qualified and experienced judge will not make a mistake.
>Disappointing that it didn't occur to the judge to question jurisdiction
It is his FSCKING job to question jurisdiction, it should be CLEARLY expressed in the warrant, if it was not so, then he should not have signed it.
The judge, by signing a warrant, claims authority over all jurisdictions EXPRESSLY COVERED by the warrant, else he should return the warrant unsigned - that is his job, now you can claim the FBI forgot this, that, whatever, and I hate the FBI with a passion, don't get me wrong, but in this very case, they were served by a judge who failed to measure the consequences of his actions.
"Since warrantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded."
Can someone make that stick to the current NSA hoovering of everything in order to have a warrant signed afterwards ?
Because in my view, what the NSA is doing is not very different.
I honestly wish that the FBI had gotten the warrant filled out right in the first place. Due to what happened to my best friend back in grade school (raped and murdered), I see people like what the FBI were targeting as less than dirt.
In the same breath, though, I commend the judge that threw out the evidence for holding up the Constitution.
The question behind the whole deal starts with an oath to support the US and its Constitution by these people. But in their hearts the feeling is if the rules are just rubbed solidly and just slightly bent it is for a good cause. These little minor things compound like interest. So the question then is "Who will guard the guardian?"
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