It may seem easy to sit in the comfort of your own home, pull out the computer and feel comfortable that nobody else knows what websites you are visiting. Unfortunately, that comfort you may feel is a false sense of privacy. The internet is essentially a large public place — with eyes everywhere. Websites frequently obtain data from you as you browse their wares. The Federal Bureau of investigation and other law enforcement agencies have tools available to them to trace website activity.

While the founders of our country could not have envisioned today’s technological advances, the Constitution does provide continuing protection from unreasonable searches and seizures. Moreover, rules, statutes and constitutional principles allow individuals to present a defense to keep government power in check – even when law enforcement operates with a search warrant.

FBI Traces And Investigates A Website’s Visitors

A case on the West Coast highlights how important it is for a person accused of an offense to know how the evidence against him or her is gathered. Federal agents seized a website last year under the belief that the site was a source of child pornography, according to Courthouse News. However, instead of shutting down the site immediately, the FBI used the site to find people who allegedly visited it over the course of two weeks.

Agents used computer malware to trace the IP addresses of computers linked to the site in what is referred to as a network investigative technique (NIT), according to court records. The FBI obtained a warrant to effect the trace, according to the transcript of a motion hearing in the case. Federal agents used the malware hacking information to obtain a second warrant to search the home and computer of a teacher they believe had visited the site.

Can You Challenge Technology To Show Its Flaws Without Full Access?

The teacher’s defense lawyer asked the court to order prosecutors to allow the defense to review the malware code to determine how it allegedly was able to specifically identify the defendant’s computer. The defense needed to see how the tracing technology works to be able to challenge the accuracy and reliability of the identification procedure.

However, prosecutors refused to allow a defense expert to evaluate the complete computer code — even under a protective order and seal. Prosecutors provided only a portion of the requested information. The judge threw out the evidence of the trace, and all evidence seized in the raid of the man’s home.

The issue did not hinge on Fourth Amendment issues – warrants existed to conduct the searches. The defense simply wanted to know how the government hacked his computer. The judge considered that to not only relevant to potential defense strategies, but fair. Prosecutors asked to meet with the judge away from the defense to explain their privilege to refuse to provide the defense with access to how they did it – a tactic that did not fly with the federal court.

When federal law enforcement and prosecutors are involved, the stakes are extremely high. It is critical for anyone suspected of a federal offense to seek the guidance and representation of a skilled defense lawyer with experience in federal criminal defense.

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