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The Dark Web Creates Challenges for FBI, Federal Agents Seeking Warrants

Mar 05 2018
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The dark web is a mysterious place that is open to nefarious and illicit human behavior. In an April 2017 Stanford Law Review article titled Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web, Boston University Law Professor Ahmed Ghappour said, “The dark web is a private global computer network that enables users to conduct anonymous transactions without revealing any trace of their location.”

Anonymity can be accomplished through The Onion Router (“Tor”) network which is a continuous component of the dark web that permits users to conceal their internet protocol (“IP”) addresses while accessing the internet. Originally created by the U.S. Naval Research Laboratory, Tor is used by individuals such as lawyers, journalists, military personnel, and activists, and by groups such as corporations and governments, concerned about digital privacy.

Tor is thus a favorite with individuals engaged in illegal activity, including individuals accessing child pornography.

IP Addresses Help Feds ID Users

In a February 21, 2018 decision, the Third Circuit Court of Appeals said, “An IP address is a unique identifier assigned by an internet service provider to computer having access to the internet, including computer servers that host websites. Websites that the computer visits can log the computer’s IP address, creating a digital record of activity on each website.”

And that’s where Tor becomes a valuable tool for those pursuing child pornography because, as the appeals court pointed out, it “prevents websites from registering a computer’s actual IP address by sending user communications through a network of relay computers called ‘nodes’ up until those communications reach the website. Numerous intermediary computers stand between the accessing computer and the website, and the website can log the IP address of only the ‘exit node,’ which is the final computer in the sequence.”

Playpen Attracts Thousands of Users Looking for Illegal Porn

A global website called the Playpen both advertises and distributes child pornography. The Third Circuit reported that Playpen has roughly 95,000 posts with over 9,000 forum topics related exclusively to child pornography that attracts more than 150,000 users.

One of those users in 2015 was a Pennsylvania resident named Gabriel Werdene.

The Third Circuit reported that in December 2014 a foreign law enforcement agency reported to the FBI that Playpen was being hosted by a computer server in North Carolina. The FBI responded to the tip by identifying Playpen’s administrator, who resided in Florida, and placing him under arrest. By periodically changing the website’s address, that administrator facilitated messages between its users while instructing them how to avoid law enforcement detection.

FBI Takes Over Playpen to ID Users

The FBI then seized the server in North Carolina and moved it to a government facility in Virginia where the agency assumed “administrative control” of Playpen while the agency’s technical support people tried to “circumvent Tor and identify Playpen users.” The FBI accomplished this objective with its own malware known as “Network Investigative Technique” (“NIT”). NIT allowed the agency to identify Playpen users around the world by accessing their computers for seven pieces of “discrete information”:

  1. An IP address;
  2. A unique identifier to distinguish the data from that of other computers;
  3. The type of operating system;
  4. Information about whether the NIT had already been delivered;
  5. A Host name;
  6. An active operating system username; and
  7. A Media Access Control address.

All this data was transmitted back to that government facility in Virginia. The FBI was confident that it could use this data “to identify users’ premises and distinguish their computers from other computers located within their proximity.”

And this is where a constitutional sticky-wicket developed in the investigative process.

Search Warrants and Modern Technology

The FBI sought, and secured, a search warrant from a federal magistrate sitting in Virginia allowing the agency to deploy NIT to all “activating computers.” The search warrant, the appeals court noted, defined an activating computer as the computer of “any user or administrator who logs into [Playpen] by creating a username and password.

In effect, the Third Circuit observed, “this single warrant authorized the FBI to retrieve identifying information from computers across the United States, and from all around the world.”

Feds Arrest “thepervert”

This Virginia-issued warrant led the FBI to the doorstep of Gabriel Werdene in Bensalem, Pennsylvania. During the last month of the warrant’s life, the FBI developed information that Werdene was logged onto Playpen for ten hours during which time he made six postings about child pornography and shared links under the username “thepervert.”

The FBI then used the Virginia warrant information to obtain a search warrant in Pennsylvania from a federal magistrate to search Werdene’s residence. That search discovered one USB drive and one DVD containing child pornography. That led to Werdene’s indictment in September 2015 in Pennsylvania for possession of child pornography.

Motion to Suppress Raises Jurisdictional Defect of Warrant

Werdene promptly filed a motion to suppress the warrant under Rule 41(b) of the Federal Rules of Criminal Procedure which, at the time, did not allow the federal magistrate to issue a warrant authorizing searches outside of the jurisdiction in which the warrant was issued. The Pennsylvania federal district court denied the motion in May 2016. The following month Werdene pled guilty to the charge against him, preserving his right to appeal the denial of his suppression motion. The district court accepted the plea arrangement and sentenced Werdene to 24 months in prison followed by five years of supervised release and a $1500.00 restitution order.

Werdene’s appeal to the Third Circuit raised two constitutional issues: 1) whether the NIT warrant violated Rule 41(b) to the level of a Fourth Amendment violation; and 2) whether the good-faith exception to the exclusionary rule applied in this context.

The Third Circuit’s February 21 decision held that the NIT warrant violated the Fourth Amendment, but no constitutional harm was done because the FBI acted in good faith when executing the warrant. The court’s ruling drew immediate attention throughout the nation’s legal community, including from the American Bar Association. The day after the Third Circuit issued its ruling the ABA explained the four components of the ruling:

“First, the Third Circuit determined that the NIT warrant violated Rule 41(b). Rule 41(b)(4) provides that a magistrate judge may ‘issue a warrant to install within the district a tracking device …’ The FBI did not believe the NIT was a ‘tracking device’ at the time it sought the warrant because the FBI did not submit an application for a tracking warrant – rather it applied for a standard search warrant; the explicit purpose of the FBI’s warrant was not to track movement – as would be required under Rule 41(b)(4) – but to obtain information from activating computers; and the NIT was not ‘installed’ within the Eastern District of Virginia, but instead on Werdene’s computer, which was physically located in Pennsylvania. Accordingly, the Third Circuit held that the FBI the NIT was not a tracking device under Rule 41(b)(4), and therefore the NIT warrant violated the Rule.

“Second, the Third Circuit decided that the NIT warrant’s Rule 41(b) violation rose to the level of a Fourth Amendment violation so suppression would be governed by the exclusionary rule standards generally applicable to Fourth Amendment violations. The Third Circuit determined that the magistrate judge, by lacking jurisdiction to issue the search warrant, not only exceeded her authority under Rule 41(b), as then drafted, but also under the Federal Magistrates Act. As a result, the Third Circuit held that the warrant was void ab initio, which elevated the magnitude of the Rule 41(b) infraction from a technical one to a Fourth Amendment violation.

“Third, the Third Circuit decided, as an issue of first impression, that the good faith exception to the exclusionary rule applies when a warrant is void ab initio due to the magistrate judge lacking

Jurisdiction to issue it. The Court considered the purpose of the exclusionary rule: to deter government violations of the Fourth Amendment and applied a cost-benefit analysis, balancing the ‘deterrence benefits of suppression’ against its substantial social costs. It held that the good faith exception applies to warrants that are void ab initio because ‘the issuing magistrate’s lack of authority has no impact on police misconduct, if the officers mistakenly, but inadvertently, presented the warrant to an innocent magistrate.’

“Fourth, the Third Circuit determined that the good faith exception did not preclude the suppression in this case, which did not fit into the four scenarios in which reliance on a warrant is unreasonable: (1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit; (2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function; (3) the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) the warrant was so factually deficient that it failed to particularize the place to be searched or the things to be seized. The Third Circuit noted that, here, the magistrate judge committed the Rule 41(b) error, not the FBI agents who reasonably relied on the NIT warrant. The exclusionary rule ‘applies only where it result[s] in appreciable deterrence,’ thus, even though Rule 41(b) did not authorize the magistrate judge to issue the NIT warrant, future law enforcement officers could apply for and obtain such a warrant pursuant to the new Rule 41(b)(6), which subsequently went into effect to authorize NIT-like warrants. Accordingly, the Court determined that a similar Rule 41(b) violation is unlikely to recur and suppression here would have no deterrent effect. The Third Circuit thus affirmed on alternative grounds the District Court’s decision to deny Werdene’s suppression motion.”

Altogether, the FBI ran the “Playpen sting” for thirteen days, and it resulted in the arrests of 350 Americans and 580 foreign nationals. It also led to the website’s administrator, Michael Fluckiger, receiving a 20-year federal prison sentence.

New Rules 41(b) Addresses Modern Tech

The new Rule 41(b) now specifically authorizes a federal magistrate “to issue warrants to search computers or seize electronic information outside their district if the location of the computer or information has been concealed through technological means.”

The dark web is no longer a haven of anonymity.

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    Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
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    Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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    John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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    One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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    He was very truthful and honest with us very great man I would recommend him and we would use him again
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    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
    Responsiveness, Professionalism …More
  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
    Responsiveness, Quality, Professionalism, Value …More
  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
    Responsiveness, Professionalism, Value …More
  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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