Much as USA Today’s Brad Heath is to be commended for bringing to the forefront another mind-numbingly dumb thing a judge said, it’s not without a problem.
This is from United States v. Matish, another of the Playpen cases where the feds took an ongoing kiddie porn site, continued to commit the crime it contends is so heinous to identify its users by dubious means, and are now facing challenges in various federal courts around the country. This decision was from Virginia Senior United States District Judge Henry Coke Morgan, Jr. And it’s not only ignorant from a computer point of view, but its logic fails by any calculus.
But in Matish, the government had a warrant. That was the holding. Judge Morgan ruled for the government in the Franks hearing. And for reasons that can only be explained by the judge, he went on to wax poetic about how he would have ruled had there been no warrant. Perhaps he was trying to cover his bases in the event he’s reversed on the suppression ruling. Perhaps he was just in a writing sort of mood. Perhaps he had a point of view that he felt just needed to be heard. Who knows? So he wrote what he wrote.
And the nerds went nuts.
According to activists, the ruling could have serious implications for how law enforcement is able to conduct remote searches.
Ah. Activists. Always a good source of outrage.
“The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all,” Mark Rumold, senior staff attorney at the Electronic Frontier Foundation wrote in a blog post on Thursday.
In the past, I would get missives from someone at the EFF about stuff that gets their blood boiling. No one sent me this one, likely because I’m not their favorite guy since I revealed that one of the Fs in their name stands for Feelz. But are the implications of this decision “staggering”? Nah.
This was obiter dictum, “incidental expressions of opinion” said in passing. The decision did not rely on it. It wasn’t necessary for the court’s ruling. It was just a side story that the judge threw in for kicks. A really stupid side story, but still just a side story.
Not that district court decisions are precedential anyway, because it’s the low court on the totem pole, but even if they were, it would not be precedent. Dictum is not precedent. Dictum is never precedent. This part of Judge Morgan’s decision won’t, and can’t, be appealed because it’s not part of the holding. Only the holding can be appealed, not the judge’s tangential musings. It is, in sum, a big fat nothing.
But, but, but . . . he was WRONG!!!
Yes. Yes he was. After holding that the warrant was good enough, Judge Morgan put his mad skillz as Fourth Amendment apologist on display, writing about the Katz standing issue, whether a computer user has a “reasonable expectation of privacy” given his peculiar assumption that every computer gets hacked eventually, and therefore it would be unreasonable to expect the contents of a computer to be private.
While it’s not true, the basis for his assumption was a Pew poll about people’s fear of computer hacking, bootstrapping generic fear by a focus group into legal doctrine. It’s goofy. More importantly, it’s directly contrary to the Supreme Court’s decision in Riley. And even if this wasn’t the case, the rationale is unsound. That burglars can break into structures doesn’t reduce the reasonableness of one’s expectation of privacy in one’s home.
Judge Morgan also tosses in some Third-Party Doctrine stuff, even though that too has nothing to do with this case since the government didn’t avail itself of this misbegotten anachronism because it didn’t have to. It had a friggin’ warrant.
To add up the pieces, district court judge issues opinion that includes dictum that conflicts with a Supreme Court decision, is logically baseless and raises excuses that don’t apply under any circumstances. So does this make the implications “staggering”? On some other planet, perhaps, but not this one.
Rumold from EFF added that “the decision underscores a broader trend in these cases: courts across the country, faced with unfamiliar technology and unsympathetic defendants, are issuing decisions that threaten everyone’s rights.”
Except judges in Massachusetts and Oklahoma suppressed the Playpen warrants, giving rise to the government being so pissed that it’s trying to change Federal Rule of Criminal Procedure 41 to stop the “broader trend” of it getting its butt kicked on the venue dilemma raised by computers, in general, and Tor users in particular.
It’s understandable that non-lawyer privacy activists were shocked and appalled by Judge Morgan’s decision, particularly after the EFF came out screaming about how the sky was falling.
In a dangerously flawed decision unsealed today, a federal district court in Virginia ruled that a criminal defendant has no “reasonable expectation of privacy” in his personal computer, located inside his home. According to the court, the federal government does not need a warrant to hack into an individual’s computer.
This decision is the latest in, and perhaps the culmination of, a series of troubling decisions in prosecutions stemming from the FBI’s investigation of Playpen—a Tor hidden services site hosting child pornography.
Wow. That sounds pretty scary. Pretty awful. This must not stand! And as a thoughtful commenter added:
You’ve overlooked the problem here; this is setting a dangerous precedent that the FBI or police can legally hack your machines without recourse, even without a damn warrant.
If they’d had argued that they’d still needed a warrant, it probably wouldn’t be such a huge problem.
Checks and balances people. SMH.
This is what comes of the lawyers on the internet, even if they get paychecks from activist organizations, channeling Chicken Little, making ridiculous claims and trying desperately to evoke outrage amongst the troops. If you can’t trust the EFF’s senior staff attorneys to tell the truth about the significance of a decision, who can you trust?
Except it was crap. The decision is dictum, of no moment. And whipping up the troops’ fears and loathing was worse than a waste of time, but did two very unfortunate things: First, it made people stupider. Second, whip up enough unwarranted outrage over nonsense and people won’t be there when there is good reason to be outraged, because they won’t trust you or they’ll be all outraged out. Sometimes, there’s just nothing to see here beyond an old judge spewing silliness. This was one of those times.
Update: Jeff Gamso says I only talk dicta because I’m a New York elitist. So sad that he’s in Ohio, but not my fault. You know what they say about Ohio.