RICHMOND, Va. (CN) – An internet privacy group went before the Fourth Circuit on Thursday trying to convince the three-judge panel that the government overstepped its authority by searching a man’s house for child pornography based on a single internet link he clicked.
“A single click on a URL should not be enough” for probable cause, Electronic Frontier Foundation staff attorney Stephanie Lacambra told the Richmond, Virginia-based appeals court.
The search of Nikolai Bosyk’s Virginia residence happened in December 2017 and he was charged with receipt of child pornography and possession of child pornography. He was sentenced last May to five years in prison.
The arrest was part of a larger federal investigation of a Tor network website called Bulletin Board A, a known resource for child pornography. The nature of the Tor network makes tracking users nearly impossible but the link that led to Bosyk’s arrest was hosted on a file-sharing website located outside the dark web, giving the feds unique access to users via their IP address.
According to federal prosecutors, an internet user at Bosyk’s address accessed the link to child porn on the site the same day it was posted. He then unlocked the download link using information found from the same board, according to Justice Department attorneys.
Bosyk filed a motion to suppress the search warrant but failed to sway U.S. District Judge Leonie Brinkema in the Eastern District of Virginia.
The search warrant application’s connection to Bosyk’s home was based only on the URL click.
“[The link] went to the download site which was password protected,” Assistant U.S. Attorney Nathaniel Smith III argued in court Thursday. “The link and password came from the child porn website.”
Smith found a sympathetic ear in U.S. Circuit Judge Julius N. Richardson, a Donald Trump appointee, who seemed more willing to accept the context of the URL would be enough to authorize the search warrant Bosyk tried to suppress.
“If cocaine is shipped to a house, a dog smells it and it’s probable cause,” Richardson said, comparing the idea of someone maliciously sending the link to a drug distribution network. “Even if the drug dealer sends it to a neighbor, they might not know its coming, but that doesn’t kill the probable cause.”
But U.S. Circuit Judge James A. Wynn, a Barack Obama appointee who is known to ask extensive questions on cases he deems important, said there were differences between sending someone drugs through the mail and sending someone a link on the internet.
He said there were too many factors that could lead someone to a website - be it pop up ads or something else - and authorizing a search in this case could open the doors for unsuspecting people to be subjected to a federal search.
“What we have here is a single click on a link,” Wynn said after referring back to the court documents showing the click as the sole basis for the warrant.
And while Wynn said he understood the context - the URL coming from a child porn network that leads to a file containing child porn - he wondered if the FBI had determined if the same link had been posted anywhere else. He said the lack of evidence showing possible further dissemination of the link could break down the government’s case as an unconstitutional burden of proof.
This was a point Lacambra of the Electronic Frontier Foundation tried to elevate in her closing arguments – that the precedent that could be set by allowing a search warrant based on one click could be “weaponized” by “trolls” on the internet.
“If I’m a bad actor and I see this link on Bulletin Board A and I share it in a different context… even if the user realizes what the link is, it's too late,” she said. “Anyone who accidentally [clicks] or gets served the URL could be a victim of [a search warrant].”
But U.S. Attorney Smith emphasized the context in which the link was accessed and how Bosyk used a password available on the child porn website to open up the file. He also noted the history of child pornographers’ use of the Tor network to hide their illegal activity.
“They were careful to not get caught and went outside the normal web,” he said. “But then they got caught.”
U.S. Circuit Judge Albert Diaz, another Obama appointee, appeared to be the swing vote on the panel. While he stayed mostly silent throughout Thursday’s hearing, he did press Lacambra on the context of the link.
“It wouldn’t be a blanket rule for the government to get what they like,” he said, hypothesizing if the court ruled in the government’s favor. He said it would instead be specific to those who access child porn websites.
But Lacambra again stressed the core of the Electronic Frontier Foundation’s argument: “A single click on a URL should not be enough.”
The judges did not indicate when they might rule on the matter.
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