Jurisdiction, the Internet, and the Good Faith Exception: Controversy over the Government’s Use of Network Investigative Techniques

Authors

Maureen Weidman

Abstract

In February 2015, the FBI discovered a website dedicated to child pornography located on the Tor Network, a network designed to protect its users’ identities on the Internet. Due to the structure of the Tor Network, the FBI could not take down the website and identify users who previously accessed the website. Instead, the FBI kept the website operational for 30 days and applied for a search warrant in the Eastern District of Virginia to use a device called a Network Investigative Technique (“NIT”). This device operated similarly to malware and “attached” to computers accessing the website, allowing the government to identify individuals who accessed the website from districts throughout the country.

The NIT proved successful in identifying numerous offenders throughout the United States, many of whom are now challenging the validity of the NIT warrant. Many of these defendants claim that the magistrate judge in the Eastern District of Virginia lacked jurisdictional authority to issue the warrant under Federal Rule of Criminal Procedure 41(b). This very rule was amended in December, 2016 to explicitly allow magistrate judges to issue warrants outside their districts in cases where defendants have concealed their locations through technological means.

This Comment discusses how district courts have handled motions to suppress evidence from the NIT warrant. Most courts have found that the NIT warrant violated Rule 41(b) but have applied the good faith exception to the warrant requirement and denied suppression of evidence seized as a result of the NIT warrant. This Comment addresses the amended Rule 41(b)’s possible retroactivity, as well as how courts should view the validity of the NIT warrant if the amendment is not retroactive. Lastly, this Comment analyzes the applicability of the good faith exception in light of the new amendment, the failure of the good faith exception to regulate magistrate judges who overstep jurisdictional boundaries, and possible solutions to regulate magistrate judges’ conduct.

Recommended Citation

Maureen Weidman, Jurisdiction, the Internet, and the Good Faith Exception: Controversy over the Government’s Use of Network Investigative Techniques, 122 Dick. L. Rev. 967 (2018).
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol122/iss3/10