NEWPORT NEWS, Va. - A federal court in Hampton Roads has ruled that investigators who hacked the computer of a Newport News man in a child pornography sting didn't even need the search warrant they obtained to do it.
Edward Joseph Matish, III is charged with several counts of Access with Intent to View Child Pornography. His case stems from an FBI investigation into Playpen, a "website that contained child pornography" according to the court filing.
The operator of Playpen was found in Florida in February 2015 and the agency seized control of the website.
"The FBI did not immediately shut Playpen down; instead, it assumed control of Playpen, continuing to operate it from a government facility in the Eastern District of Virginia from February 20, 2015 through March 4, 2015," the court filing recounts.
On February 20, 2015, a federal magistrate judge authorized the use of a "network investigative technique," or NIT, on Playpen's server to get identifying information from computers of any user who logs on to Playpen.
The NIT was used against Matish and another judge approved a search warrant for his home which was executed in July 2015 and lead to several computers, hard drives, cell phones, tablets and video game systems to be seized.
In a Motion to Suppress, Matish's legal team sought to suppress "all evidence seized from Mr. Matish's home computer by the FBI on or about February 27, 2015 through the use of a network investigative technique, as well as all fruits of that search."
In a June 23, 2016 opinion and order, U.S. District Judge Henry Coke Morgan, Jr. found that "probable cause supported the warrant's issuance, that the warrant was sufficiently specific," and "furthermore, the Court FINDS suppression unwarranted because the Government did not need a warrant in this case."
In the opinion, Judge Morgan wrote "hacking is much more prevalent now than it was even nine years ago, and the rise of computer hacking via the Internet has changed the public's reasonable expectations of privacy."
The Electronic Frontier Foundation, a non-profit digital rights advocacy group in San Francisco, filed a brief in the case contending the search was invalid.
After the ruling that the warrant was valid, the group called it a "dangerously flawed decision" and wrote in part:
The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all. To say the least, the decision is bad news for privacy. But it's also incorrect as a matter of law, and we expect there is little chance it would hold up on appeal. (It also was not the central component of the judge's decision, which also diminishes the likelihood that it will become reliable precedent.)
Matish is expected to go to trial on October 25.
You can read the entire opinion and order here: United States of America v. Edward Joseph Matish, III
