Fallout from the FBI’s PlayPen case continues as a Texas federal judge rules hacking does constitute a Fourth Ammendment “search.” The judge writes that “This was unquestionably a ‘search’ for Fourth Amendment purposes.”
The FBI used malware called a Network Investigative Technique, or NIT, to infect a suspect’s machine. After gaining control of PlayPen in 2015, the FBI deployed the NIT to thousands of machines across the US. This is where the issue starts to manifest itself. A warrant was obtained, permitting them to use the NIT to gather information from suspect’s computers.
However, the warrant that permitted the hacking was granted by a a magistrate judge
in the Eastern District of Virginia. According to the Federal Magistrates Act, magistrate judges must only operate within their district. An example of this can be seen in a motion to supress evidence filed by another PlayPen member. The majority of the motion was based on legitimate reasoning behind whether or not the NIT constitutes a search. But part of the appeal hinged on the territorial limitations of the magistrate’s warrant. Since the defendant lived in the