Defense tries to reverse guilty plea in FBI hacking case

A defense lawyer for a man charged as part of an FBI hacking operation is attempting to withdraw his client’s guilty plea, Motherboard reports.

{mosads}The move comes after a federal judge invalidated the warrant the government used to hack thousands of child pornography suspects, including defendant Michael P. Lough.

“Counsel knew of no defenses to the charge at the time of the guilty plea,” Thomas Dyer, representing Lough, wrote in a motion filed this week.

The warrant in question allowed investigators to place malware on Playpen, a website known to contain child porn, and identify users. Using this method, the government reportedly identified thousands of users, leading to numerous cases.

But civil liberties advocates and legal experts questioned whether the government could use one warrant, authorized in Virginia, to uncover previously unknown people in locations around the country.

Alex Levin, a Massachusetts man and one of the defendants charged with accessing child porn through Playpen, challenged the warrant on these grounds.

The warrant “allowed government agents to conduct a borderless dragnet search with no geographic limitation,” wrote Levin’s lawyer, J.W. Carney, in a court filing.

Current law, Carney added, “simply does not permit a magistrate judge in Virginia to authorize the search of the defendant’s computer located in Massachusetts.”

U.S. District Judge William Young agreed last month, writing that the warrant “was issued without jurisdiction and thus was void.”

“It follows that the resulting search was conducted as though there were no warrant at all,” he added. “Since warrantless searches are presumptively unreasonable, and the good-faith exception is inapplicable, the evidence must be excluded.”

Lough pleaded guilty to possession of child pornography in March, before Young’s decision.

“Neither the defendant nor his counsel were aware of legal developments at the time of the defendant’s plea because the new information on this subject was not readily discoverable despite due diligence. This case deals with a novel and cutting edge area of criminal law,” Dyer wrote.

But the kind of warrant that the government used may soon be legal. The Supreme Court last week approved changes to a little-known criminal procedure rule known as Rule 41.

The proposed alteration would allow judges to grant a single warrant for electronic searches in multiple locations or even when investigators don’t know the physical location of a device.

The Justice Department, which has been working for years to get the change, insists the revision to Rule 41 is a necessary update to match the realities of modern digital investigations.

“This amendment ensures that courts can be asked to review warrant applications in situations where it is currently unclear what judge has that authority,” the department said in a statement.

The amendment now goes before Congress, where lawmakers have seven months to weigh in before the rule takes effective in December.

It has been met with swift opposition by privacy and civil liberties activists.

Sen. Ron Wyden (D-Ore.) is expected to unveil legislation blocking the change “within days,” according to an aide.

“This is a new area of criminal law that is being litigated at this very moment throughout the entire country,” Dyer wrote in his filing.