unconstitutional for several reasons first the federal magistrate sacked is not authorized magistrate judges issue global warrants this purported warrant was therefore void and no warrant at all under the fourth amen second this was a general warrant although it purported to authorize literally a million searches it did so without identifying any particular place or person to be searched third the warrants execution violated the fourth amendment because the only valid triggering condition for this anticipatory warrant never occurred each of these constitutional violations merits oppression and suppression is also required because the rule forty one violation here prejudice mr mclean for these reasons we asked the court this court to reverse the decision below let me begin by what i think is the them easiest way perhaps for this court to dispose of this case much like the kruger majority did in the tenth circuit and that's the rule forty one prejudice because under even the government's version of the burke test where we deal with hypothetical facts mr make land was prejudiced and the argument here is very simple global warrants violate rule forty one this technology could only search globally and that was uncontested in the district court and it's uncontested here as factual matter and so applying the government's version of the burke test if me address some of the constitutional issues and i'll begin by addressing particularity this is the general warrant that grubbs and andrew's warned against rubs in the supreme court and this court's decision and enters the government says that the place to be searched here was any computer that logged in to the plate and site but that was an indeterminate number of computers when the warrant issued that category of places simply didn't exist any computer in the world could have logged on to the playpen site but none was identified in the warrant application as being particularly likely to do so and so the government met part two of the grubs anticipatory warrants by showing that it was likely that the triggering condition would occur only by skirting particulary his that had not identified upfront any computer it was actually likely to enter  site and so grubbs in andrew's warned in the context of interest before he warrants that dealt with the package the delivery of a package of drugs that if if the government didn't identify the place that to which the drugs were going to be delivered and make a showing that it was likely that that would drugs would be delivered there and you could get an anticipatory warrant to search any home in the united states if drugs were delivered and that's what we have here the net warrant authorized the search of any computer in the world if in the future it visited the place inside and importantly your honour's it did not have to be this way so the government could have been much more particularized in the way they set out  places to be searched here and the government in fact did this for three play pen users in page eight sorry in paragraph eighteen of the warrant application which is a joint appendix page sixty nine there the government made individuals showings probable cause identifying a playpen user by user name reciting the historical conduct that that particular so this is a joint appendix page sixty nine it's paragraph eighteen of the  application for the warrant in this case and and that's because the government once they seize the playpens server they had access to historical information that was logged on the playpens and so they knew the total amount of time that someone had been on the site historically they knew whether that person had posted information on the site how many the government in its warrant applications as there were one hundred users that made at least one hundred posts a certain number of users that had made at least three hundred posts and so the time it issued and there was no showing there is in the sense that you have to be sufficiently motivated to have a username and password to enter the plane in song which would earn some terms what you're saying which is i think overly broadly stated into some sort of rule context so so i mean every site presumably is available to me on my computer if i knew at all how to access that's true yes but i do think the scope here is quite broad even of the of the set of people who were searched and so as i said in my introduction you know we're talking about literally a million potential searches the government didn't execute the warrant that many times but at page six eighty of the joint appendix the government's own exhibit shows that there were a million  well your honour's so i think that to some extent the good faith argument is tied to what the constitutional fall is but let me specifically with regard to particularity this was a problem that was clear on the face of the war and  supreme court's decision in leon even singled out particularity problems as those that are particularly unlikely to be susceptible to good faith excuses by the government for the very fact that it is clear on the face of the warrant application  with respect to some of the other problems that we've identified early that will forty one problem i think the basis for the rule forty one violation is pretty clear in our brief but let me address judge factor the good faith problems with that aspect of the government's investigation and really the rule forty one problem was clear and it was acknowledged by the department of justice as early as two thousand  we had to see cips manual to d o j manual and this is a page eight thirty eight of the joint appendix there's a head note and it says agents should obtain multiple warrants if they have reason to believe that a network search will receive data stored in multiple locations and then at page one thousand eight of the joint appendix we have f b i testimony in this case where the f b i agent testified we reasonably believed that there were members of the playpen website throughout the country and throughout the world and so even if the f b i and the department justice had just followed their own guidance they would have known that one warrant could not support these searches under rule forty one but that wasn't all we had because in two thousand and thirteen we had the only published decision on this point which was the n r a warrant decision out of texas there the judge said it warrants like this do not comply with rule forty one and here's why as a result of that decision the government  and the department of justice lobbied the rules committee to change will be more on so that these searches would be allowed and this lobbying effort went from two thousand and thirteen well before this warrant application was applied for and the change wasn't an act until after change this warrant was applied for and that in lobbying the rules committee the department of justice specifically cited this kind of investigation they said we need this change because we want to conduct investigations of tor based child pornography sites  and so that change had not happened and the and the government decided to move forward anyway we layer on top of that background information agent mcfarlane's actual knowledge in this case which even though it's an objective test under good faith  officers subjective knowledge of facts is relevant and here we have testimony that was undisputed below that the f b i agents who applied for this warrant and executed this warrant consulted with senior department justice attorneys consulted don't rely on their consultation with armand just as an attorney so so we tried to get into the substance of those communications and were prevented from doing so in the district court and that's the basis for our our the privilege issue we raised here because the government put those communications at issue by saying they relied on those consultations but we don't know what was said i think what it's fair to assume based on the record is that this rule forty one problem was at least discussed and we know that ant them to do but but in the face of this this wasn't a question certainly like davis where the law was clearly established and they could live a pretty thin to it i'm not sure this particular area  benefits very much from an analysis where you're not dealing with electronic research in the parameters of the law are so unclear which is precisely why the government saw and received the clarification which i suspect they were aware was forthcoming and i think this would be a different case judge duncan if the government had flagged this rule forty one issue for the magistrate and that's really where is that i'm i'm sorry you're saying that to what are you see exactly for purposes of a good friend who now lives so our position really is if you look at the supreme court's decision and johnson which was a retroactivity case but dealt with kind of the the basis for when suppression has meaningful to turn impact and there the supreme court suggested that where officers move forward despite official awareness of the dubious constitutionality of their conduct then is acceptable so there's no deterrent effect here well well i think it's taking it one year i think there is your honor and that's because this is about him next door and in the next i'm just not sure so in the next case your honor where the law is not clear or where at least the the limited published authority that exists says this is unconstitutional government action then that if the court suppresses here in the future the government will either seek the rule change instead of moving forward despite the fact their conduct doesn't comply with the current law or your honor they will be more explicit in their application to a magistrate or whoever whatever the judge is that they're seeking permission from and identify in an ex parte proceeding new site or chopper non graphic in there were there was probable cause to believe that anyone who visited that site was doing so for the purpose of gauging not just criminal activity but also the exploration of ways in which to place to be searched ex ante and then i think what we've raised is a separate problem with the triggering condition here and that is that just as a fundamental matter of law when you have an anticipatory warrant the triggering condition has to preserve the magistrate's probable cause assessment because the magistrate is saying in the future there will be probable cause that this happens and so wow ever you define the triggering condition that actually triggers the warrant search authority that president that probable cause determination has to still remain valid and please the court i'd like to start with what is threshold question in this case that i don't think defense counsel spent much time addressing which is does the warrant satisfy rule forty one before and on that question i think that there has been some division among the courts but that the plain language of the political rule and statute really answer the question and if you go first to the statutory provision that finds a tracking device that's an eighteen u s c thirty one seventeen b it defines a tracking device as an electronic or mechanical device which permits the tracking or movement of a person or an object so that statu tells us that we can have tracking using electronic means so the net can satisfy electronic means tracking and you can also track objects which is rule forty one the fines includes  information and that's also true going back to the new york telephone case from the supreme court so we know that you can use an electronic device like that and that you can track information like the digital content from the playpen  website and so then you're left with the question of where was the net and stalled because rule forty one b four says that you have to install the tracking device and the district and the warrant itself on its face worldwide it's more the talking and i know and i would say it's actually less invasive in the sense that if if the you know the net were installed on a device that the government had possession of then obviously that installation itself cannot be a fourth amendment violation because you're doing something that the government has possession of now we got a warrant because we knew that the net would then go into homes and people's computers a search well that's i think a really important and critical question in this case and there you need to focus on what is the scope of a tracking device and what separates it from other types of arents and what was the information sought here and the information sought here was functionally to a done a fire the location of a computer and it really didn't meaningfully go beyond that and one way to see that is that the government didn't take back child pornography from defendants computers when they found them all the government found was a collection of information that allowed it to specify within home once had an ip address which particular computer was then that might have logged onto the playpen website and the fact that we then had to go to the internet service provider and get use a subpoena to find out who was associated with that ip address and then on top of that go and get a warrant from the district where that person's computer was or the ip address was located shows that we weren't doing what was just a general i'm going to look at all the content your computer we were just know the i mean that so the device obtained the following information it got the activating computers ip address and date and time so that's the that's the first cut on location  to clarify what you did get the ip address ok so that's that's an important question i got the ip address of the and user who is getting on to the  and website and the thing that's so in order to get an ip address the api address was only for people who had the who had obtained the password that's exactly right and that's why the net was useful if it had some really and discriminant you know searching it would have been useless to the government i mean there's no evidence that once we had these ip addresses we were going to people who had not obtained the operating system the type on the computer which is that's useful for within a home you've got multiple computers often using one ip address so you know i get internet service from for arisan and i and other people in my home could have multiple computers and so that you would have to go into somebody's home to figure out yes that's right but at so that's what you're still saying with then a particular drops ratings system that is being used within that location right but that's not very i mean that's really not very personal information that's you know everyone who's got an apple gone too far and searching for information for it to be a tracking device and that's just the functional question of is this information helps that done a five the the the person you're looking for and the limited array of computer what else ok and so you have the activating computers host name mac address and user name on the operating system so all of this is just telling you who was it and what's the location the particular computer who may have been logging on to play it was unlike dramatically unlike this case the defendants frequently cite from the district of texas or i guess it was warrant from two thousand and thirteen where they commandeered the video camera on the computer collected email contact got accounting information browsing history documents photographs that's a search that is very full in scope and and with the right set of facts the new b six provision would permit that kind of remote searching for evidence of a crime but when you are just collecting information that is telling you who is it that logged on to play and which is the thing that the tor network prevents us from otherwise being able to figure out you've got a straightforward tracking device and the fact that we had to go and get warrants from individual  where the ip address was located it shows that really what this functionally what this warrant did was just tell us where do we have to go in order to get the warrant that enables us to search for content that is the evidence of the crime and i it i mean what what why ask for more than he had the address right and i mean you could have stopped theoretically with just the ip address but again you would still have the problem that frequently there are many computers in a home and multiple people living within a home and you want to be able to try to determine which of those people was the one who was using information both wasn't terribly personal but more important also was not itself going to be evidence of criminal conduct it's just evidence to determine location a little more precisely and there's nothing in the text of the rules governing of rule forty one before and thirty one seventeen b that says yeah you can have a tracking device as long as that is they or as long as it stops at the level of a home but doesn't if you're anything more precise maybe there would be i mean there almost certainly would be a problem if we were doing tracking into a home without a warrant but this is judicially supervised looking within a home via warrant for a death for the location information and then once you have that you've got the further process of going to the internet service provider to figure out who has that ip address and then the further process of us another warrant issued by the magistrate judge in the district where the person's ip address is located to do the search of that particular physical location and so really the big picture is that i think has gotten lost in some of the judicial decisions in this area is that this was just gathering location information and rule forty one before authorize that when you start in the district where the tracking devices installed and the tracking device was plainly installed in the eastern district of virginia the warrant says i mean starting with attachment a it says this warrant authorizes use of a network investigative technique what does that mean it was only when the user access ring that he that you were paying the ip address right so what happened is without a then you additionally download content as your own or described it and when you download the content the user does takes that affirmative steps the user also unwittingly takes with that the neck code and the net but this only sent back that limited information that was again just location information and essence or a way of determining location and one point i want to  about this is and the thirty one seventy seventeen b covers electronic means of tracking an object objects include electronic evidence and the rule about drinkin arguments you just right  warnings that all the things that are opposing health raise right well first of all the nothing the defendant has cited shows that the government believed that this tracking device was not a tracking device and nothing that he has cited discusses the sort of collection of limited done a fighting information now it's true that the government thinks that and seeking this kind of before the six was added that if you were going to go and look in someone's computer and harvest child pornography from their computer and use that to prove your case that's going to be on a tracking device and you should be in the district where the defendant is located to get such a warrant but that's not this warrant this were it was nothing like that texas for it that they keep citing and so there isn't any evidence that the government via its own internal documents that is produced or the testimony thought that this warrant was was improper moreover the the basic question for a court is an objective one about looking at the law was the magi judge correct and if not was that an objective what reasonable determination that the magistrate judge made and of the answer that question is yes then under an objective standard whether somebody within the government had us a different idea really doesn't answer the question that the courts are are supposed to be addressing and valuating good faith but if we're going to consider we're going to consider good good or that experts were consulted is it correct to say that there's information that has to discussions that were had or being kept from secret so that we don't know if somebody up there said said well this is really pretty lucy goosey bill is just go ahead and give it a shot i mean well several reasons one is the fact of a good faith the facts doesn't mean that the government was a letter to process privileges and there isn't moreover when you're dealing with  technology like this its usefulness often depends on people not knowing exactly the full details of the way that the exploit for example which is now classified works because if it's publicly known all the details it becomes useless because people defeat it and so it's not that the details necessarily are so you know juicy and revealing of some evil intent it's just that if you have disclosure of  them it becomes useless it's like in the world of you know troop movements in the military you could have where your troops are located is not a terribly revealing or you know and some you know is there some evil conduct within the government no but but if your opponent knows that they're going to take full advantage of it and so you can't have the particulars of the exploit and that's the exploit let me be clear that's not the code that says to the end user's computer send this limiting a location information back that's the part of the net that allows you to get around all this encrypted within that  network so you know just to step back on how the tor network works you've got end user who then contacts this hidden web site on the or network and you have hackett's of information that move from end user to these node computers along the way each one of them is encrypted and that's the part that makes it so difficult to figure out who's on that website and so this exploit is allowing the government to get around the encryption and shielding of the end users ip addresses that moves through those nodes and so this was a long winded way of saying there are some very good reasons why the government doesn't want to turn over everything that it says about how this stuff works because because it would destroy the usefulness of the device but as to the more basic question about the whether the legal advice is something that the defense should have in the context of a suppression motion i think that the dramatically more informative information is how courts are looking at the strength of the legal arguments about whether this is a tracking device or not and whether it was a reasonable call for the magistrate judge and on that you've got now you know dozens of district court opinions that have weighed both whether th a tracking device and whether good faith is warranted and that's the kind of information that you get from an objective evaluation of the strength of the competing legal arguments not some subject of valuation within the government  i see my time is up but one last point if if the court would allow on that which is which is that you do have the testimony from the age of mcfarlane who was one of the person let me begin where my friend on the other side left off and that is this testimony by agent arlen about his belief and the basis for his belief that this warrant in fact qualified as a tracking device why and this goes to the questions that you are asking judge cogburn because our position is not simply that raising good faith automatically waives any otherwise existing privilege but when the government affirmatively says that it is based on the reliance on consultations with specified attorneys at the department of justice it forms the underlying basis for this belief that mr cook is still today relying on to support good faith claims that is using the privilege as a sword and a shield and so at the very least we think a remand for further development of the facts on those issues is necessary but let me address some of the points about whether this this technology really is a hack tracking device my friend on the other side said that we have not shown that the government didn't think this was a tracking device at the time well again we've got the privilege problem there but again the application doesn't use the words tracking device once it's on the wrong form if in fact the government believes this was a tracking device why the government argued in the district court not just that this was authorized under before but also that it was an authorized search under be two and so it seems that the government's own views of its authority here have evolved especially throughout the district court litigation but at the end of the day that the real book read for it like it defies when i read it that was my my say that they didn't use the term but they attempted to frame oh i'm sorry you tard you mean in the in the application yeah oh yeah well i and it was back to it does read like the crack so what so is a from a factual standpoint i think the records clear that it did not in fact work way and so is a joint appendix page or sixty four we have testimony of the f b i agent who says we wanted to seize information from the defendant's computer and that's what they did with this technology that the government that we're a very suggestive living in a forum on a site that was very difficult to access in the first place device i mean whether there was probable cause or not to search or attach a tracking device it's still one or the other and i think the second point i would make is a factual matter is there was an assertion on page eighteen of the government's response to an unrelated motion to compel that that was how this particular want was executed but that's different from what the warrant authorized and so to be clear we're challenging the validity of the warrant the search is authorized by the war and the warrant more layered in disguise well so the way the government frames it is that you had to know you either navigate there and they say how you could have or you had to know the specific u r l but that's just a fancy way of saying click on a hyperlink because whenever you click on a hyperlink you're essentially entering a u r l into your browser get it yeah it's not i don't need to argue with you about the access but it's not quite as open as my record it's not something that would an embedded hyperlink if you click on that