Hey there What’s Next crowd. Law.com litigation editor and resident techie Ian Lopez here with some of the wonkier developments this week at the intersection of law and technology. We’ll start by looking at the controversy behind a warrant the Ninth Circuit upheld despite dubbing it unconstitutional (Tor and child porn are involved). Also, a quick glance into recent DMCA exceptions that arguably mark a milestone in the “right to repair” movement. And a push for SCOTUS review of a case that some fear may have broader implications for online speech.
Is The NIT Warrant a Gateway to Crack Constitutional Protections?
Last week, I wrote about the Ninth Circuit OK’ing a search warrant it deemed unconstitutional in a FBI sting into the child porn site Playpen. That warrant allowed the use of Network Investigative Technique (i.e. NIT), a controversial method the bureau employed to crack the anonymous Tor browser, sniff out the IP addresses of Playpen users in different jurisdictions, and indict them.
Where critics call foul with NIT warrants is that courts often decide they violate the Fourth Amendment but are still admissible on a good-faith exception. Among the warrant’s most vocal critics is the Electronic Frontier Foundation, whose attorney Andrew Crocker tells me “the government has indisputably violated Rule 41 (of the Criminal Rules of Civil Procedure) and the constitution thousands of times with this single warrant to do these NIT searches.”
“It’s a single warrant to search an unbounded number of computers, and not only is it unbounded in number, it’s not bounded in terms of who the people are. The only criterion that’s used to authorize the search warrants is [someone] visits a website.”
The Ninth Circuit is far from alone in considering the constitutionality of the NIT warrant used in the FBI’s Tor hack. USA Today’s Brad Heath pegged the number of circuits at seven. In Crocker’s view, the message sent by the circuits is the government ”can do similar kinds of violations around the edges” of the law, barring they “immunize” their mistake by claiming to have acted in good faith. “That’s really inconsistent with the idea of the Fourth Amendment,” Crocker said.
“The main problem here is the expansiveness of what that warrant authorized,” he adds. “I think [the FBI] could have proceeded in a more measured, piecemeal approach. They wanted to go after everyone at once, and I understand why that is, but that’s very much in tension with how the Fourth Amendment works.”
➤ Looking Ahead: Some may wonder whether SCOTUS is likely to weigh in on NIT warrants, given the amount of appeals involving them. But Crocker says that may not be the case since a number of defendants in cases that have gone to the circuit courts have already petitioned the High Court, which has thus far refused to hear their cases. “I think it’s unlikely for all the reasons criminal cases don’t get up to the Supreme Court very often.”
On the Radar: 3 Things to Know
➤ Hack it Up said the Library of Congress and U.S. Copyright Office. Well, not exactly, but the institutions did greenlight Digital Millennium Copyright Act exemptions last week legalizing the practice of consumers and indie repair shops hacking embedded software in personal devices to make repairs. The move marks what Motherboard called “a landmark in the ‘right to repair’ movement,” OK’ing the breaking of digital rights management (DRM) software in devices like cell phones in certain instances. But don’t expect an uptick in consumers jailbreaking their iPhones. Holland & Knight’s Richard Raysman told Legaltech News that even though a path has been paved for consumers and repair shops to break into devices, “it doesn’t mean that they’ll actually be able to get into the code.”
➤ Snap the Vote. Snapchat may be the latest social media platform entering the foray of election involvement. The company is boasting it helped register over 400,000 voters. The trick? A button on each user’s profile directing them to a nonpartisan voter registration site, reports the NY Times. And while turnout clearly remains to be seen, Snap reports that decent chunks of those registered are in battleground states, with nearly 30,000 in Texas and 23,000 in Florida.
➤ Amazon’s ICEbreaker. You may recall I wrote about Amazon’s facial recognition tech mixing up congressmen and alleged criminals, as well as struggling to identify people of color. Turns out Amazon was trying to sell that same tech to U.S. Immigrations and Customs Enforcement, according to documents obtained by the Project on Government Oversight. The idea of ICE having access to such technology has some spooked, including former ICE officials, like Alonzo Pena, who told The Daily Beast that potential abuse should be an area of concern. “If they have this technology, I can see it being used in any way they think will help them increase the numbers of detentions, apprehensions, and removals.”
Delete Entry: Pushing for SCOTUS to Weigh in On Online User Reviews
Many of you know Section 230 of the Communications Decency Act protects web services from liability over content posted by their users. Well, the protection it grants sites like Yelp! could come into question before the Supreme Court if a lawyer for Donald Trump gets his way.
Media attorney Charles Harder announced last week (sans Trump affiliation) he’d filed a petition asking SCOTUS to review a defamation case in which California’s own high court used Section 230 as grounds in deciding sites like Yelp can’t be forced into removing negative user reviews.
Harder’s name may ring a bell beyond Trump’s suit against Stormy Daniels—he also repped Hulk Hogan in the defamation suit that bankrupted Gawker, and Melania Trump in a defamation suit against the Daily Mail in 2017. He said in a press release that a SCOTUS hearing will hopefully “vindicate” small business owners through the “removal of defamatory statements that threaten to destroy the businesses and personal reputations that they have worked so hard to build.”
But The Verge reports groups like the ACLU believe that increasing companies’ legal liability “would either discourage other platforms from letting users freely post comments, or encourage them to avoid any kind of moderation whatsoever,” situations that “Section 230 is supposed to help prevent.”
As to whether SCOTUS gives the issue the time of day remains to be seen. Yet if it were to, CNBC’s Sara Salinas writes that such could “muddy those publisher protections” afforded companies like Facebook and for things like “threats a single user makes against another on its platform.”
➤ Looking Ahead: Section 230 has come under recent legal scrutiny (see here and here) as users test the limits of their tech platforms. And while SCOTUS may decline weighing in, expect much more in terms of challenges to the immunity if affords the platforms causing the most stir online.
That’s it for this week! Stay tuned for What’s Next!