Two federal judges have found that the government's use of software in a mass hacking of child-porn websites to identify users is constitutional, the Washington Post reports. The rulngs by judges in Tacoma, Wa., and Milwaukee are the first in an uncharted and technically complex area of law. The two cases involved a child-porn website, Playpen, that was reachable only through the installation of special software called Tor, the world's most widely used tool to give users anonymity online. Because users who gravitate to Playpen were able to hide their tracks using Tor, the FBI obtained search warrants to hack the website and surreptitiously place computer code, or malware, on computers logging into some forums on the site. When a user logs in and clicks on the forum, the malware exploits a flaw in their browser, forcing the computer to reveal its true Internet protocol address.
The defendant in the Tacoma case, Keith Michaud, argued that by hacking a website and infecting possibly thousands of computers in unknown locations — the site had 215,000 members — the government's action violated the Fourth Amendment's requirement that a warrant “particularly” describe the place to be searched. Michaud, who has been charged with receipt and possession of child pornography, also argued it amounted to a general warrant, a reference to the British practice during the Colonial era of allowing government searches without individualized suspicion. U.S. District Judge Robert Bryan denied Michaud's motion to throw out his charges on constitutional grounds. “Although the FBI may have anticipated tens of thousands of potential suspects as a result of deploying the ['Network Investigative Technique'], that does not [violate the Constitution] because it would be highly unlikely that Website A would be stumbled upon accidentally,” Bryan said. In a separate but related case in Milwaukee, a judge similarly found that the FBI had probable cause to issue a warrant to deploy the malware, what the bureau calls the Network Investigative Technique (NIT).