power to issue and the reason the government wanted this war it was so that it could distribute child pornography to anyone anywhere in the world who knew how to access the pornography website that the government had seized and that's what the government did but the government had a problem with the search method that it wanted to employ the magistrate judge did not have the power to authorize now the case involves two parallel tracks that intersect at some point first there's the i s investigation they learned of this website called played some time in twenty fourteen and during the investigation they were sieved information from a foreign intelligence or law enforcement agency that the web site was hosted on a server located in north carolina so they were able to seize the server and take control of the website and then they move the website to a government server located in the eastern district of virginia but rather than shutting down the website the government decided that it wanted to keep it up and running so that it could hopefully identify the users of the site people who were downloading uploading the child pornography but they had a problem the technique they wanted to use to identify those users were choir to what was called a network investigative technique or in i t for short and what that would do is when users logged onto the website  t which was essentially a piece of malware would send instructions to the computer that was accessing the cycle mobley and tell that computer to send information such as the ip address information about the operating system on the accessing computer so that the f b i could take that information and then hopefully go to the internet service provider and find the actual physical location of the computer that was accessing the web site now that necessarily meant that  the warrant authorizing that technique would allow the search of a computer located anywhere in the united states or anywhere in the world for that matter because at the time the f b i started you know wanted to do this they didn't know where the access effectively deploy it worldwide at that time rule forty one of the federal rules of criminal procedure did not authorize magistrate judges to issue warrants for searches of property or people outside of the district where  judge sat now the government could recognize this problem before plaited even came into the picture as early as two thousand and thirteen the government knew this was going to be a problem because they had been warrant by a magistrate judge in the southern district of texas for an i t that would operate largely the same way that the one ultimately did in this case and the judge there found that what the government wanted to do was not rules asking for an amendment to rule forty one that would authorize this type of search and the reason that the government gave that time was because on its face rule forty one did not authorize this and so it would require either an amendment to the rule or the judicial creation of a new exception to the geographical imitation in rule forty one and so at the time and twenty fifteen point with the government january twenty fifteen when the government sought the more the rules changed the minute process had started but had not completed and so at that time to forty one still did not authorize this type of war now in the middle of the rule did become effective in december twenty sixth so that technical matter just simply because i'm not familiar with this as a technical matter how does the search occur pursuant to the united warrant so what happens is  the the web site is located on some the goal of the onion router which is a network on the dark web it's something that you want to be able to access or even find just by running a search on google for example on your router network or a separate dedicated network that requires specialized know how to access it requires a user to download the tor software and what it does is it sends communications from the user's computer through a they relate network of other volunteer computers elsewhere in the world ultimately what it does is it anonymize as the source of the of the originator is the onion server forgive me if i get this wrong is that what's located in the know what's located in virginia is a government server ok that contains the website that they seized from north carolina and so the way that tor operates is by the time the communication from the originat reaches the site there's no way to go back through the chain to identify with what that accessing computer was or where it's located and so what the and i t did was whenever somebody would access playpen using tor that information from that computer including the ip address which is a unique identifier for each computer on the internet information about the operating system that the computer was using and some other information and then send that back to the governments are in your view is that the search yes the extraction of the information from the accessing computer is the search the deployment of the and i teach it and i don't think the government takes any issue with the fact that this was an effect a search in this case is the ip address generally available without using what you just used term dark dark where about think is that is the i t i mean the ip address otherwise available when you use the computer generally i'm like judge duncan i'm asking because i don't know and i'm not as familiar with the technology as probably most people but my understanding is that yes unless somebody is taking steps to anonymize their presence in their activities which is the whole purpose of the coordinate work which was in fact originally developed by the us navy to allow secure government communications around the world that which is now available publicly to anyone who has the core software at this first search out of you you say it's parallel this first search is simply blocking the ip address off of the person using the computer to access this child pornography site is that correct but the ip anything else nothing else in the computer no files no videos photographs of any other content other information about the computer so the operating system be it windows or a mac environment also the the hardware that's being used what type of hardware that computer contains something called the m a c address which is also something that is a unique identifier for that computer but even with just that information alone that's not sufficient to identify the location of the computer that's why the f would then have to go to the internet service provider and say we've got this ip address we've got this other information where is this computer and so again because of the way that the torrent of work operates in anonymizing one's activities on the internet that information would not be available normally not absent that would information would not be available if the user was not using the toward network design or stand it so but because of the way that the users were using tor they were concealing that information it wasn't just floating out there is best understood as my colleagues may have more questions about the technical aspects but for me i mean i guess the elephant in the room is is it correct that every circuit court to have addressed this has found that the good faith exception to the work requirement applies yes that's correct and just last evening the sixth circuit issued a session case called united states versus more it would turn the notion of good faith on its head to apply it in a situation where as here the government knew or should have known that the magistrate judge did not have the authority to issue the warrant that the government was asking for and given the nature of the government's conduct in this case and the government made a deliberate and conscious decision to distribute child pornography worldwide to anybody who knew how to access it all for the purpose of identifying people who were downloading and uploading child pornography so the government found it necessary to commit a serious crime in order to catch criminals and i know that sometimes the government has to go undercover you know teche to infiltrate drug trafficking organizations or or gun trafficking organizations but generally the government does not actually create the very harm that it is seeking to prevent by prosecuting people and so for that reason i don't think that the court can say that the government is acting it and of course the idea is that we don't want the criminal to go free because the constable was blundered well in this case it's the f b i who's the constable but they weren't acting alone they worked in close consultation with the department of justice to get this war and so it isn't a situation where the agent just made a mistake and then the magistrate as well the government manufactured this problem by seeking a warrant to do something that it was asking for a list in a minute to the  rule to authorize because at the time they did not authorize that well would you agree that's one view i guess another view might be the way the rules used to be it was unclear whether such a warrant could issue the government did the right thing by seeking a minute amendment to the warrants to clarify the situation but that doesn't necessarily mean it was acting in bad faith before that it might have i mean what was were there certain theories that might have justif doesn't mean didn't didn't isn't there the possibility that they might have thought you know maybe the tracking aspect of rule forty one could have justified this well and that was one argument that the governor but that's i think a very difficult argument sustain if you look at the text of rule forty one in the definition of a tracking device rove forty one cross references the definition of trafficking device in eighteen u s c section thirty one seventeen and it's defined as electronic or mechanical device which permits the tracking of the movements of a person or object here the and i t was not tracking the movement of anything all it was doing was seeking information that the government could then take to identified the location of the computers so there was no people there were no people or property that were moving here and therefore nothing that was being tracked so yes that's a government argument the government made an argument that some district courts agreed with but i  telling that at the time of the amendment process the government said on its face that will forty one did not authorize this and in terms of deterrence going forward it shouldn't matter that the rule has now been amended in this this more it would be ok now because technology is constantly going to be overtaking the law it's just the nature of the law that it's not going to be able to keep and to say that the government acted in good faith here is to say that in these situations where it becomes on clear the government's allowed push the  we find out just how far it could go but the constitution protects the rights of into vigils the fourth amendment is not there to allow the government to constantly expand its authority to search it says that warrant should not issue on probable morning it's durban for united states how many fifth circuit arguments for you mr durban this may be eighty i'm not sure i lost count a while back it's been a while i've had some other jobs in the interim but it's good to be back we will we had some more early in the week and was on about number seventy so you're you're doing your job and we'll see if i've still got it this case i think it's about good faith i think i think judge duncan you've hit what the issues are the the issue i think the primary issue is an eight circuits have now looked at this they've all gone through or they've all considered they have it all result whether or not it was a tracking warrant none of the circuits have found it was a tracking warrant but a number of district courts did find it was a tracking warrant under the circumstances of this case i think first of all it's a unique case i don't think it's going to rise again because the rule has been amended this was a particular investigative technique that was used for this child pornography operation it is the case that the government seized the server from north carolina took at the virginia and did operated for a period of time they operated it under a wiretap order that was issued by  district court in eastern virginia wasn't like the government was just out doing child pornography on its own it had it had gotten court supervision so that they could intercept what the communications were back and forth and in doing that they realized they couldn't identify who the users were that were making access through the dark web to this server and that was part of the object of the investigation was to find out who is making access to this and there  complicated process to get into the server you had to download tor software you had to access you had to find out what the website address was for this particular website it was  available through a google search it was generally available perhaps through other child pornography sites or through chats and those sorts of things then you had to specifically access it and you had to put in a user name and an e mail address but the advice from the website was don't use your real username and don't use your real mail at the e mail address because it could be tracked back to you in some way so the whole thing took the users some considerable effort to get into and the government out of the technology just couldn't access it and so what they resorted to was under the supervision of the authority of the court was to use this network investigative technique i think all the courts that have considered it have considered it to be a search because it went out to these computers ultimately to find specific information it was very specifically particularize information that identified the computer it information took additional investigation to figure out where those computers were because once they got the idea as pete then they still had to go to the ip address they still had to go to the internet service provider with separate process to figure out where the computer was actually located and then in this case it was located in the austin area and a second search warrant was obtained for the purposes of actually searching and seizing that computer the issue i think is if you if you consider good faith and i think that's what this case turns on is what's the deterrence it's going to be accomplished if this court says that there was not good faith now the supreme court has said in all of the circuits that have considered it and this court as well has consider good faith it's to deter police conduct going forward not past conduct but going forward and i would submit to you that this circumstance will not repeat itself because now the rule is very clear at the time i'm not sure that the rule was quite so clear as counsel suggests that it was in hindsight after eight circuits have now resulted yeah it looks like pretty much the rule didn't specifically address this particular circumstance but i think that the government in good faith was exploring several avenues one avenue was one of the court's going to do or the court's going to construe the rule to cover this kind of warrant and second of all let's go through the amendment process for the rules to specifically address this type of investigative technique because we may use it again that one magistrate judge in a published opinion in two thousand and thirteen made the decision that they thought that they saw a different investigative technique it was also an invasive technique but it was a technique that was actually going to allow for video recording of the users of the target computer they were trying to find in that case and additionally they didn't have th target computer identified in such a way that they knew they could go directly to it as they could the users that were the targets of this particular investigation involved a fraud a fraud offense and there was some anonymizing and they were going to have to look at a number of computers before they could even be certain that they had the right one and it was some concern on the magistrate joe's part that there was going to be terribly invasive rezin the nature of basically a wiretap that was going to be done through the auspices warrant so while the twenty thirteen case put the issue or raise the issue i think the department of justice did exactly what you would want to encourage them to do explore what the courts are going to do with it and at the same time explore as it were the legislative remedy that's going to fix it and both of those things have been done in the course of this the courts have to resolve what the legal issue is i don't think it was quite as clear as counsel suggests as he as he said  as our materials indicate a number of district court found that this was analogous to a tracking warrant it was not technically compliant with the rule but it was in the nature of it and i don't think the magistrate or the government or the investigators were beyond the can or so on notice that this was an improper warrant that it that it should be struck down on some basis of bad faith and fine and when you get to the end of the day if you suppress this you're not  deterring anything because it isn't going to happen again and good faith is about deterrence of the police and because the rules has changed there's there's no deterrence to be had there is there is no effect to be gained from applying the court created exclusionary rule in this person to kill or circumstance what is the police conduct that would be deterred by this talking with prosecutors to determine whether or not this is a lawful warrant exploring with the courts to determine what the legality of the warrant is going to be in the long run surrendering because we've got a technological problem we surrender to the criminals and say ah they're all done cover it so we're not going to do anything we'll just have to wait around and see if we can convince somebody to change the rules i think under the circumstances there's nothing else the government could have done that's responsible and that application of the exclusionary rule in this case would create x actually the opposite result of what the court would intend it would be almost capricious in a way because i'm not sure that the government could have done anything else to accomplish this and to have done it in such a way that it lays all the issues out the government's transparent throughout there was no secrecy about what was being searched the government says there's nothing to deter here because that rule has been changed but we don't know what the next situation is going to be at this point in time i was going to ask you about that so let's imagine there is some technological i hesitate to say advance some some further well they can do what they did here they can no rules committee to make a change of that changes within the power of the rules committee can do and go to congress and seek a law that will authorize it what the government should not be able to do is decide well we're just going to go ahead and do it anyway and let the chips fall where they may see how it plays out and again consider what the government did here they didn't go undercover to infiltrate a drug trafficking organization or anything like that they distributed child pornography potentially thousands or hundreds of thousands of people around the world and the whole point of criminally criminalizing child pornography is to try to undermine the market well here the government was an active participant in the park as far as the relevant facts are concerned surrounding the circumstances of the warrant ok the government says what else could we have done well that could shut the site down and they decided not to