Good Faith Beats Bad Warrant In Another Win For FBI's World-Traversing NIT Malware

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Another challenge of the NIT (Network Investigative Technique) warrant used by the FBI during its investigation of a dark web child porn website has hit the appellate level. A handful of district courts have found the warrant used invalid, given the fact that its reach (worldwide) exceeded its jurisdictional grasp (the state of Virginia, where it was obtained). That hasn't had much of an effect on appeals court rulings, which have all found the warrant questionable to varying degrees, but have granted the FBI "good faith" for violating the jurisdictional limits the DOJ was attempting to have rewritten (Rule 41 -- which governs warrant jurisdictional limits, among other things) to allow it to do the things it was already doing.Even though the FBI had to have known searches performed all over the world using one Virginia-based warrant violated Rule 41 limits, appellate judges have declared the FBI agent requesting the warrant wasn't enough of a legal expert to know this wasn't allowed. Two appeals courts have stated suppressing the evidence is pointless because the law changed after the jurisdiction limit violation took place. The appellate decisions have been troubling to say the least, providing further evidence that the good faith exception is the rule, rather than the outlier.The latest decision [PDF] dealing with the NIT warrant comes from the Third Circuit Appeals Court. It, too, finds the warrant questionable. And it states the government has agreed the warrant was not valid under Rule 41(b).

The Government conceded below that “[a]lthough Rule 41 does authorize a judge to issue a search warrant for a search in another district in some circumstances, it does not explicitly do so in these circumstances.” App. 91 (Government Br. in Opposition to Motion to Suppress) (emphasis added).

On appeal, however, the Government curiously has reversed course, and now contends that the NIT was in fact explicitly authorized by Rule 41(b)(4), which provides that a magistrate judge may “issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both.” Fed. R. Crim. P. 41(b)(4) (emphasis added).According to the Government, under this Rule, “the NIT warrant properly authorized use of the NIT to track the movement of information—the digital child pornography content requested by users who logged into Playpen’s website—as it traveled from the server in [EDVA] through the encrypted Tor network to its final destination: the users’ computers, wherever located.”

We need not resolve Werdene’s contention that the Government waived this argument because we find that the Government’s tracking device analogy is inapposite. As an initial matter, it is clear that the FBI did not believe that the NIT was a tracking device at the time that it sought the warrant. Warrants issued under Rule 41(b)(4) are specialized documents that are denominated “Tracking Warrant” and require the Government to submit a specialized “Application for a Tracking Warrant.” See ADMINISTRATIVE OFFICE OF U.S. COURTS, CRIMINAL FORMS AO 102 (2009) & AO 104 (2016). Here, the FBI did not submit an application for a tracking warrant – rather, it applied for, and received, a standard search warrant. Indeed, the term “tracking device” is absent from the NIT warrant application and supporting affidavit.

More importantly, the exclusionary rule “applies only where it ‘result[s] in appreciable deterrence.’” Herring, 555 U.S. at 141 (quoting Leon, 468 U.S. at 909) (emphasis added). Thus, even though Rule 41(b) did not authorize the magistrate judge to issue the NIT warrant, future law enforcement officers may apply for and obtain such a warrant pursuant to Rule 41(b)(6), which went into effect in December 2016 to authorize NIT-like warrants. Accordingly, a similar Rule 41(b) violation is unlikely to recur and suppression here will have no deterrent effect.

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Game Studio Threatens Employees' Jobs If They Don't Write Positive Reviews Of Own Game, Then Steam Pulls Game Entirely

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It's no secret that Valve's Steam platform is the dominant marketplace for PC video games. Much comes along with that status, including the strategies and metrics studios must employ to get their games noticed on Steam. One of the important metrics for recognition is Steam reviews. And it's not just the review scores themselves that are important, but actually getting reviews -- any reviews -- to begin with is a big deal.So it's no surprise that game studios strategize on how to get their games in enough customer hands to generate reviews. Still, one studio's strategy has massively backfired. Insel Games out of Malta recently released Wild Buster, it's latest title. Sadly, in the all important initial release window, the game was not generating enough reviews to result in a general review score on the game page. Those scores are often used by consumers to quickly decide whether a title deserves their attention at all and a lack of a score can indicate that the game isn't good enough to even warrant a look. Insel's CEO, Patrick Steppel, decided to address this with a strongly-worded email to his own staff insisting that they all buy the game and review it, despite having had a hand in making the game. If employees refused to do this, Steppel warned that it could mean that they would no longer have a job at the studio.

“I had [sent] an email earlier but I was told that some of you announced to colleagues that you do not want to make a purchase of the game and/or a review. Frankly, this leaves me pretty disappointed. Of course I cannot force you to write a review (let alone tell you what to write) - but I should not have to. Neglecting the importance of reviews will ultimately cost jobs. If WB fails, Insel fails, IME fails and then we all will have no job next year. So I am asking you either of do the following: buy the game and present me the receipt until Friday night for which (together with a claim form) you will be re-imbursed within 24h or explain to me tomorrow why you do not wish to do this. I would like to discuss this individually and privately with each of you and will follow up.”

In a post last night on the Steam forums, a Valve representative wrote that as a result of this new information, the store has pulled all of Insel Games’ products. “The publisher appears to have used multiple Steam accounts to post positive reviews for their own games. This is a clear violation of our review policy and something we take very seriously. For these reasons, we are ending our business relationship with Insel Games Ltd. and removing their games from our store. If you have previously purchased this game, it will remain accessible in your Steam library.”

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