FBI Can Use Malware to Track Child Pornography

By George Khoury, Esq. on January 30, 2018 | Last updated on March 21, 2019

In a recent ruling from the Fourth Circuit Court of Appeals, some much-needed clarity has been provided regarding the FBI's use of malware to track individuals accused of possession and distribution of child pornography. Notably, the appellate court upheld the use under the good faith exception of the exclusionary rule.

In short, the court found that the officers that sought the warrant allowing the use of the malware pursued the warrant in good faith after consultation with government attorneys and did not make misrepresentations to obtain the warrant. Given these findings, the court ruled that suppressing the evidence obtained was not an appropriate remedy and wouldn't help to deter future repeat conduct by law enforcement.

Not a Suppressing Result

The U.S.A. v. McLamb case was hotly contested due to the use of malware by the FBI to track down individuals using the dark web and Tor to download and upload child pornography. Robert McLamb wasn't the only person convicted, but his case was ripe for an appellate decision on this issue which has been the cause of much uncertainty across the country as the malware led to over 800 individuals. 

Much of the controversy was over whether the FBI should be using "hacker" softwares/malwares to combat crime, and some cases where the defense pressed for the release of the code were dropped. However, there was also a rather large hubbub about whether doing so actually exceeds a judge's authority or violates constitutional rights.

The malware program was installed on a server that was seized in Florida that contained a child pornography network. However, due to the way that Tor works, none of the users that connected to the server could be detected. The malware the FBI loaded onto the server circumvented this feature of the Tor, allowing the FBI to identify users of the network that uploaded or downloaded child pornography.

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