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    Judge Won’t Consider EFF’s Arguments in FBI Mass Hacking Case

    Written by

    Joseph Cox

    Contributor

    Earlier this month, digital rights group the Electronic Frontier Foundation (EFF) filed a strongly worded amicus brief arguing that the warrant used by the FBI for its use of malware to identify visitors of a dark web child pornography site was “unconstitutional,” and qualified as a broad, “general warrant.”

    But on Tuesday, Robert J. Bryan, the district judge overseeing the case rejected the group’s argument, saying it contained allegations of fact not supported in the record, and that it was simply repeating arguments already made by the defense.

    “According to EFF, a self-proclaimed ‘recognized expert’ on the intersection of civil liberties and technology, the law enforcement techniques employed in this case present novel questions of Fourth Amendment law,” Bryan writes in his order. The brief was signed by Mark Rumold, Nate Cardozo, and Andrew Crocker from the EFF, and Venkat Balasubramani, an attorney who is representing the organization.

    Traditionally, Bryan adds, those who file briefs are impartial, can give insight into the law and information concerning it, and advise the judge so that justice can be properly delivered, rather than push a particular position to benefit one party or the other.

    “EFF does not provide objective, dispassionate, and neutral discussion of the issues. Instead, EFF advocates on behalf of Mr. Lorente, under circumstances where Mr. Lorente is well-represented and does not require EFF's assistance as amicus curiae,” he continues.

    Bruce Lorente has been charged with child pornography crimes, stemming from his alleged use of the site Playpen, which the FBI seized in February 2015 and ran from their own servers in Virginia for 13 days. During this time, the agency deployed what it calls a network investigative technique—the agency's term for a hacking tool—to identify users who visited specific, child pornography related forum threads.

    At least 137 people have been charged in the US as part of this investigation, and Motherboard found that computers in Greece, Chile and likely the UK were hacked as well.

    That international aspect was part of EFF's brief. “Because an activating computer could conceivably be located anywhere in the world, the Warrant conceivably authorized FBI searches and seizures in all 50 US states, every US territory, and every country around the world,” it reads.

    “We're disappointed the judge denied our motion, but we're confident there will be other opportunities to weigh in on this important question,” Rumold told Motherboard in a statement. “We remain concerned that a substantial misunderstanding exists about the nature of the technology used, how it operated, and the constitutional and policy implications of that technology. We'll continue to do everything we can to make sure that the courts have the information they need to make informed decisions in these cases.”

    However, it is pretty rare for briefs like this to be filed in district cases in the first place, at least in comparison to, say, appeals courts or the Supreme Court. Indeed, Judge Byran points out that briefs are not typically anticipated in criminal cases like this one.

    “No rules or guidance regarding amicus filings appears in the criminal law for District Courts. There is good reason for that. If amicus filings that supported the defendant—either directly or indirectly—were appropriate, then amicus filings from private parties that supported the government would also be appropriate,” Byran writes.

    “That would hardly comport with concepts of fundamental fairness and Due Process,” he adds.

    Recently, a judge in a case revolving around access to a locked iPhone denied a motion to file a brief from the American Civil Liberties Union (ACLU), a similar group to the EFF.

    In sum, “The Court will disregard the amicus brief,” from the EFF, Bryan concluded.