Seeking Warrants for Unknown Locations: the Mismatch Between Digital Pegs and Territorial Holes

• Publication year: 2018

Seeking Warrants for Unknown Locations: The Mismatch Between Digital Pegs and Territorial Holes

Diana Benton

SEEKING WARRANTS FOR UNKNOWN LOCATIONS: THE MISMATCH BETWEEN DIGITAL PEGS AND TERRITORIAL HOLES

Abstract

Increasingly, criminal activity takes place over the Dark Net, a portion of the Internet that allows users to conceal their identities and locations. Law enforcement can observe Dark Net users committing crimes but cannot identify them for further investigation and prosecution without hacking into their computers. Such hacking is a search within the meaning of the Fourth Amendment, which means law enforcement must obtain a warrant beforehand.

However, the need to search the computers of Dark Net users presents law enforcement officers and courts with a problem that does not often arise in the traditional search warrant context. Because a judge does not have the authority to issue a warrant that will be executed outside her jurisdiction, police cannot apply for a warrant without first knowing where the computer to be searched is located. The nature of the Dark Net—a virtual space for criminal activity that is unmoored from the traditional territorial boundaries that define courts' authority—creates a dilemma for courts and law enforcement. How can a judge know whether she has authority to issue a warrant when the location to be searched is undiscoverable without the very warrant itself?

This Comment analyzes the Fourth Amendment implications of such warrants and recommends expanding statutory authority and procedural mechanisms to allow judges to issue warrants when the location to be searched remains unknown. This expansion would further the constitutional preference for warrants without violating constitutional principles governing territorial limitations on courts' jurisdiction.

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Introduction.......................................................................................185

I. Territorially Constrained Warrants in the Age of the Internet.....................................................................................189

A. Digital Data and Warrants................................................... 189
B. Anonymous Internet Users of Unknown Location ................ 192

II. Proposed Solution...................................................................194

A. Territorial Limitations on Warrants and Courts .................. 195

1. Constitutional Purposes for Territorial Constraints ...... 196
2. Absence of Constitutional Prohibitions on Expansion of Authority ......................................................................... 199
3. Existing Exceptions.........................................................200

B. Extraterritoriality Concerns .................................................202
C. Physical and Non-Physical Searches ...................................206

III. Implications..............................................................................207

A. Immediate Implications ........................................................208

1. Defendants, Law Enforcement, and Third-Party Information Providers .................................................... 208
2. Foreign Nations ..............................................................213

B. Potential Implications for the Fourth Amendment's Territorial Limitations ..........................................................217

Conclusion...........................................................................................220

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Introduction

The Internet offers criminals an unparalleled opportunity to source, market, and sell illicit products and services in a nationwide or even global marketplace.¹ To evade law enforcement, criminals are increasingly shifting their online activity to the Dark Net,² which ordinary Internet users cannot access without specialized software or authorization from the network's host.³ The Dark Net hosts vast black markets for child pornography,⁴ illegal narcotics, toxic chemicals, illicit weapons, hacking software, and stolen credit card data.⁵ Offenders coordinate heinous crimes over the Dark Net with terrible consequences for victims and society,⁶ including hosting forums where pedophiles share tips for abusing children and exploitative videos,⁷ selling powerful opioids that cause overdose deaths,⁸ and even executing murder-for-hire schemes.⁹

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Beyond the challenge of discovering and accessing these secret marketplaces, law enforcement must identify offenders to prosecute them.¹⁰ However, Dark Net users are typically anonymous,¹¹ identified only by their self-designated screen names.¹² As one court explained, "[The Onion Router (TOR)] browser enables users to cloak their identities in darkness—like guests to a dimly lit masquerade ball using masks to conceal their faces."¹³ Absent self-disclosure,¹⁴ law enforcement must hack into users' computers to determine their identities.¹⁵

Because hacking into a computer is a search, the Fourth Amendment presumptively requires law enforcement to first obtain a warrant.¹⁶ In the absence of a warrant, nothing that the search uncovers can be used as evidence at trial.¹⁷ Yet law enforcement officers cannot apply for a warrant without first

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knowing where the computer to be searched is located, because the location of the search will determine which court has authority to issue the warrant.¹⁸ Courts face geographic limitations on their jurisdiction,¹⁹ absent certain exceptions.²⁰ Therefore, if a court issues a warrant to search a computer at an unknown location, then the warrant may be void ab initio if the search reveals that the computer is physically located beyond the court's jurisdiction.²¹ Because a void warrant cannot provide a legal basis for a search, the prosecution cannot rely on anything found in the search in a criminal trial.²²

This Catch-22 prevents the government from investigating and prosecuting dangerous criminals; the Internet creates a virtual space for criminal activity unmoored from the traditional territorial boundaries that define courts' authority.²³ Hence, this Comment argues that when no other district is known to have jurisdiction, federal judges should have the authority to issue warrants for the search or seizure of property under the Fourth Amendment if the alleged crime could be prosecuted in their district. This approach bridges the disconnect between courts' jurisdiction, based on physical spaces, and crimes that take place in cyberspace.

This discussion is timely because a 2016 amendment to Rule 41 of the Federal Rules of Criminal Procedure provides a mechanism for federal courts to issue remote access warrants, which authorize law enforcement to hack into a

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computer to search for information.²⁴ The amendment was added because the proliferation of criminal activity on the Dark Net made these investigative techniques increasingly necessary.²⁵ Prior to the amendment, for example, a court had rejected the FBI's application for a warrant to hack into a cybercriminal's computer to determine its physical location because Rule 41, at the time, did not allow remote access warrants.²⁶ Although amended Rule 41 provides a procedural mechanism for such warrants, it does not address the question of constitutionality when the court issuing the warrant does not know ex ante whether the search will take place outside its district.²⁷ Anonymous Dark Net users may be located anywhere in the world.²⁸ While scholars have proposed practical frameworks to regulate government hacking to reduce conflicts with international law,²⁹ the constitutionality of these searches has not yet received detailed scrutiny in the context of the amendment to Rule 41 allowing remote access warrants.³⁰ The procedural framework for issuing these warrants is

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already in place, but the issue of courts' constitutional authority to issue remote access warrants urgently needs to be resolved.

To provide the first steps toward defining the courts' constitutional authority to issue warrants where the district of the physical evidence is unknown, this Comment proceeds in three Parts. Part I explains how warrants are applied to digital data and the conundrum of investigating anonymous Internet users whose physical location is unknown. Part II proposes the solution of providing authority to federal judges to issue warrants based on the location where the crime under investigation may be prosecuted, and calls for an amendment to Rule 41 and federal statutes to accommodate the proposed changes. It also explains how the proposed exception comports with territorial constraints on courts' authority to issue warrants and constitutional limitations on extraterritorial application of their authority. Part III discusses immediate implications and the potential for expanding Fourth Amendment protections to allow the Warrant Clause to apply overseas.

I. Territorially Constrained Warrants in the Age of the Internet

Analyzing the Fourth Amendment's implications for anonymous Internet users of unknown locations requires a brief overview of how warrants apply to digital data in general. Section A below discusses the Fourth Amendment's application to digital data and section B describes the unique dilemma presented by Internet users who have masked their physical locations.

A. Digital Data and Warrants

The Fourth Amendment applies to searches for digital data in two important contexts: (1) warrants allowing law enforcement to search a user's computer;³¹ and (2) warrants served upon third-party information service providers compelling them to provide stored user data.³² This Comment addresses the first context.

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The Fourth Amendment protects against warrantless searches by government actors.³³ A search is a physical intrusion into constitutionally protected areas, including a person's effects,³⁴ or an invasion into an area where a person has a reasonable expectation of privacy.³⁵ Federal...