Should the government be able to get a warrant to search a potentially unlimited number of computers belonging to unknown people located anywhere in the world? That’s the question posed by the Playpen case, involving the FBI’s use of malware against over a thousand visitors to a site hosting child pornography. The prosecutions resulting from this mass hacking operation are unprecedented in many ways, but the scope of the single warrant that purportedly authorized the FBI’s actions represents perhaps the biggest departure from traditional criminal procedure.
The Need for Particularity
Warrants are often considered the basic building block of the Fourth Amendment. Whenever the government seeks to engage in a search or seizure, it must first get a warrant, unless a narrow exception applies. In a previous post, we explained the significance of the Fourth Amendment “events”—several searches and seizures—that occurred each time the government employed its malware against visitors to Playpen.
But simply calling something a warrant doesn’t make it a constitutionally valid warrant. In fact, the “immediate evils” that motivated the drafters of the Bill of Rights were “general warrants,” also known as “writs of assistance,” which gave British officials broad discretion to search nea