Hacking Makes Privacy Unreasonable? Meh (Upate)

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.

25 thoughts on “Hacking Makes Privacy Unreasonable? Meh (Upate)

  1. Keith

    How soon till the FBI uses the rationale in his dicta to avoid a warrant?

    Yea, yea, yea… my fault.

    And as far as meaningless lines in an opinion, I thought his reference to Apple exposed his bias a bit more plain.

    Didn’t see much outrage over that one though.

    1. SHG Post author

      Space aliens!!! Does the FBI and DoJ make up bullshit rationales for their failings? All the time. Will some reviewing judge read this and say, “oh, well, if Judge Morgan said so”? Not unless they were inclined to allow the bullshit rationale to suffice anyway.

      1. paul

        Space aliens are almost a mathmatical certainty given the size of the universe and current models of requirements for life forming planets.

  2. PDB

    Maybe deep down the judge really wants to be a law professor and comment on things that have nothing to do with anything.

  3. Dissent

    So the privacy sky wasn’t falling, and I should have just stayed calm and had more coffee, huh? 🙂
    Thanks for another great post, Scott.

  4. F5

    So dicta doesn’t mean anything? Whew. I guess I can falsely yell fire in a crowded theater causing a panic?

  5. Jim Tyre

    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 ….

    I presume you mean me. If so, truly I’m impressed at your ability to discern when and why I do (or don’t) send you things based solely on what I do or don’t send. (If you mean someone else, feel free to insert Carly Simon here.)

    The decision is dicta, of no moment.

    That sounds more like something that would be written by a law student, not by an experienced in the trenches lawyer. You live in a blessed world if you’ve never had opposing counsel or judges cite dicta against you.

    1. SHG Post author

      I’ve had dicta cited by opposing counsel. I’ve had doctored quotes cited. I’ve had opposing counsel just make holdings up. I read the cites and, when they do, rip them a new asshole for trying to deceive the court. That’s how I deal with it. Your mileage may vary.

  6. Nigel Declan

    Did the judge have any parenthetical comments about how the increased prevalence of Oceans 11 sequels has diminished the expectation of privacy in casino vaults?

    1. SHG Post author

      If the judge at least had a sense of humor about it, this wouldn’t have been such an incredibly stupid decision.

  7. pavlaugh

    Overreaction? Sure. But dicta? I doubt it. “[A]lternative holdings are not dicta.” Gestamp S. Carolina, L.L.C. v. N.L.R.B., 769 F.3d 254, 262 n.4 (4th Cir. 2014) (citing MacDonald, Sommer & Frates v. Cnty. of Yolo, 477 U.S. 340, 346 n.4 (1986)). The heading and other text on page 40 of the order indicate that the language is included in the discussion of an alternative holding, not dicta–for example, “even if the warrant were invalid or void, it was unnecessary.”

    1. SHG Post author

      Check the cites. Always check the cites. From footnote 4:

      …since the Superior Court did not rest its holding on only one of its two stated reasons, it is appropriate to treat them as alternative bases of decision.

      Here, the holding was based upon the valid warrant, which conclusively ends the inquiry.

      The Court FINDS, for the reasons stated herein, that probable cause supported the warrant’s issuance, that the warrant was sufficiently specific, that the triggering event occurred, that Defendant is not entitled to a Franks hearing, and that the magistrate judge did not exceed her jurisdiction or authority in issuing the warrant.

      No matter what else he may say, that ends the inquiry and everything that follows is noise.

      1. pavlaugh

        The immediately following sentence from the order is: “Furthermore, the Court FINDS suppression unwarranted because the Government did not need a warrant in this case.” That finding directly results from the court’s conclusion that the defendant did not have a reasonable expectation of privacy.

        The trial court could have completely sidestepped all of the issues you quoted (probable cause, specificity, jurisdiction, etc.) by instead simply concluding that no warrant was required. All of those issues would be moot. That’s what makes it an alternative holding rather than unnecessary dicta.

        Simply because the trial court arranged its holdings in one order or another does not make the alternative bases dicta. If the trial court wrote, “I find no warrant was required. Furthermore, even if a warrant was required, it was supported by probable cause,” would you be arguing that the “it was supported by probable cause” holding was dicta? It wouldn’t be. It’s an alternative basis for denying the motion.

        1. SHG Post author

          No. More words doesn’t make your argument any better. And now you’re just making people a whole lot stupider. Nobody said it had to do with the order, but with the substance that totally eludes you.

          Say hi to the law: We have a thing called the Fourth Amendment. It has a Warrant Clause. Warrantless searches are presumptively unconstitutional. Warrants are always favored, and if there is a valid warrant, it is always the holding because warrants are always favored. Warrant and warrant exception are not equivalents, which is why one is the rule and the other is the exception. Rule wins.

          If you want to argue this further, go to reddit and wait for me there.

          1. pavlaugh

            No. I’ve been banished to reddit by SHG, but if you take the time to enlighten me on your perspective, I would appreciate understanding why I’m being absurd. Assuming (and this is a big assumption because I don’t necessarily agree with the district court’s rationale) the motion to suppress could have been denied because either (1) probable cause supports the warrant; or (2) an exception to the warrant requirement applies, then it would was unnecessary for the trial court to make both of these findings. But each is an independent rationale for denying the motion to suppress. In other words, the trial court could have held #1 or #2, and not the other, and yet the decision would be the same: no suppression.

            I’m looking at this from the perspective of an appellate court. If the appellate court is going to affirm the trial court’s ruling, it only has to write on one of the two issues presented because they are alternative bases for affirming the judgment. So if the appellate court writes on both, neither is dicta–they’re alternative bases for affirming the trial court’s judgment.

            1. SHG Post author

              What part of being banished to reddit did you read as repeat yourself for Myles’ benefit? Maybe your confusion is that you’re focused on the remedy, suppression, rather than the cause for the remedy, which is would be an invalid warrant. If the court held there were two bases upon which the validity of the warrant would be established, that would be alternative holdings.

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