Simon Bramfitt

Senior US District Judge Henry Coke Morgan Jr., a federal judge for the Eastern District of Virginia, has ruled that the user of any computer which connects to the Internet should not have an expectation of privacy because computer security is ineffectual at stopping hackers. The ruling made on June 23rd was reached in one of the many cases resulting from the FBI’s infiltration of PlayPen, a hidden child exploitation site on the Tor network. After taking control of the site, the FBI kept it up and running, using it to plant malware on visitors’ computers, gathering identifying information that was used to enable prosecution.

Judge Morgan ruled that the FBI’s actions in hacking visitors’ computers did not violate Fourth Amendment protections and did not require a warrant, stating that the “Defendant here should have been aware that by going [on-line] to access Playpen, he diminished his expectation of privacy.” Describing the ruling as “dangerously flawed” Electronic Frontier Foundation Senior Staff Attorney Mark Rumold wrote, “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.” But holds out that the ruling is “incorrect as a matter of law, and we expect there is little chance it would hold up on appeal.”