The seventh Appeals Court to weigh in [PDF] on the FBI's Network Investigative Technique deployed in the Playpen child porn investigation has weighed in. Unfortunately, it makes the Sixth Circuit the seventh appeals court to find the FBI's warrant problematic, but willing to apply the "good faith" band-aid.
The problem with the application of the "good faith exception" is it assumes good faith on behalf of the FBI. There's no reason to believe the FBI acted in good faith, though. While it was in the process of obtaining a single warrant allowing it to search computers all over the world, it was well aware Rule 41 limited searches to the jurisdiction where the warrant was obtained. It knew this because the DOJ was in the process of asking the Supreme Court and Congress to change Rule 41 to remove the jurisdiction limits while it was pursuing this investigation.
The Appeals Court grants good faith anyway, despite this background. It does do us (and the appellant) the favor of discussing good faith in light of the DOJ's simultaneous attempt to codify searches it was already performing, but just because the discussion is expanded a bit doesn't mean it makes much sense. Here's the opening of the Sixth Circuit's federal forgiveness pitch:
The good-faith exception is not concerned with whether a valid warrant exists, but instead asks whether a reasonably well-trained officer would have known that a search was illegal.
A "well-trained officer" should never have sought the search warrant in the first place, because a "well-trained officer" would have known search warrants were limited to the jurisdiction they were issued in. But the agent sought the warrant anyway and a magistrate judge actually approved it. The judge's approval means more to the Sixth Circuit than the FBI's bad faith proposition.
For the same reasons articulated in Master, we conclude that the good-faith exception is not categorically inapplicable to warrants found to be void ab initio. The difference between a state court judge acting without authority and a federal magistrate judge acting without authority is of little significance—in both instances, the individual who signed the warrant (arguably) had no power to do so. Master’s holding that the good-faith exception applies to one applies with equal force to the other. Accordingly, the good-faith exception to the exclusionary rule is not categorically inapplicable to warrants that are void ab initio because of a magistrate judge’s jurisdictional error.
But the case cited (Master) isn't applicable to this situation. In that case, an officer presented a warrant request to the wrong county judge, accidentally obtaining permission to search outside of the judge's jurisdiction. A similar mistake could not have possibly been made with this warrant request. A federal magistrate -- whose jurisdiction covers an entire state -- could not have been mistakenly approached to grant permission to search an entire nation. The FBI's warrant affidavit clearly states it sought to search computers without knowing where any of the targets were located. The judge saw this and signed it anyway. Even if the judge blew the call, there's no way anyone can argue with a straight face the FBI did not know the warrant request violated the law as it stood when it requested permission to deploy its NIT.
It may have been "reasonable" for the FBI agent to rely on the issued warrant, but only if you ignore what was happening at the DOJ during the time this investigation was occurring. In fact, it can be argued this investigation and a similar one in 2014 expedited the DOJ's efforts on this front as it surely recognized some judges were going to find its NIT warrant invalid.
This explanation by the Sixth Circuit of its decision to extend good faith to the FBI agent doesn't help. In fact, it doesn't make sense.
But reasonable jurists have come to different conclusions about whether the NIT Warrant was valid. Compare United States v. Austin, 230 F. Supp. 3d 828, 833 (M.D. Tenn. 2017) (finding the NIT Warrant does not violate Rule 41(b) because it is the equivalent of a “tracking device” and therefore falls under the ambit of Rule 41(b)(4)), with United States v. Croghan, 209 F. Supp. 3d 1080, 1089 (S.D. Iowa 2016) (concluding that the magistrate judge lacked authority to issue the NIT Warrant), overruled on other grounds by Horton, 863 F.3d at 1052. We cannot, therefore, expect officers to have known that this type of warrant was invalid at the time it was sought. See Workman, 863 F.3d at 1321 (“[I]f a violation took place, it has escaped the notice of eight federal judges who have held that the same warrant complied with federal law and the federal rules even though data was being extracted from computers outside the Eastern District of Virginia. . . . [E]xecuting agents could reasonably have made the same mistake and reasonably relied on the magistrate judge’s decision to issue the warrant.”).
The court is saying an FBI agent -- requesting a warrant in 2015 -- can be excused for his Rule 41 ignorance because court decisions made 1-2 years after the warrant was sought suggest the NIT warrant area might have been a bit more gray than previously imagined. Furthering the retroactive forgiveness, the court goes on to point out -- as others have -- that Rule 41 changes, which went into effect more than two years after the warrant was obtained, now makes this sort of search legal. Since suppressing evidence is supposed to deter bad behavior by law enforcement, a past abuse that has been codified into law does not present further opportunities for exactly this same abuse of authority.
Certainly it would be impossible to violate rights in the same exact way again, what with the rules having been changed following the abuses contained in this investigation. But the deterrent effect of suppression would discourage law enforcement from seeking permission to perform illegal searches, even if there's a chance those searches may become Constitutional in the future due to changes in the law. This is the court telling law enforcement to roll the dice in edge cases because you just never know what the future might bring. This encourages misconduct because it demonstrates the extent of the federal courts' capacity to forgive.