RELYING ON "GOOD FAITH" AS A JUDICIAL STOPGAP FOR ADVANCING TECHNOLOGY: NIT WARRANTS & FEDERAL RULE OF CRIMINAL PROCEDURE 41(b)

Written by Jennifer Kelly Corcoran¹

INTRODUCTION

Bryan Gilbert Henderson regularly accessed child pornography from his home in San Mateo, California, where he lived with his grandmother.² Under the moniker "askjeff," Henderson logged into Playpen, a child pornography website, and accessed over thirty hours of content during a six-month period.³ Henderson, along with 150,000 Playpen users,⁴ avoided law enforcement detection by utilizing "The Onion Router," colloquially known as "Tor."⁵ Tor is a downloadable software that allows individuals to anonymously access websites.⁶ Instead of accessing the website directly from an internet browser, Tor’s network connects the user to the website through a "series of virtual tunnels," thus masking the user’s internet protocol (IP) address.⁷

On March 1, 2015, Henderson logged into Playpen through Tor.⁸ This time, however, his mask came off. Unbeknownst to any of Playpen’s 150,000 users, the Federal Bureau of Investigation (FBI) had secured a Network Investigative Technique (NIT) warrant which authorized a search of any computer that logged onto Playpen with a username and password.⁹ The FBI, in conjunction with the Department of Justice’s Child Exploitation and Obscenity Section, had secured the NIT warrant specifically to take down Playpen and its previously anonymous users.¹⁰ Operation Pacifier, targeting Playpen, resulted in the successful arrests of over 350 individuals in the United States and over 548 individuals abroad.¹¹