The Government filed no response to Ackies cert petition, and the Supreme Court did not request one before denying the petition without comment last month. Pure speculation on my part, but I can easily imagine DOJ appellate attorneys heaving a collective sigh of relief when this petition was turned away.
Had they been required to file a responsive brief, their duty of candor to the Court might well have required some uncomfortable concessions. These admissions might well have affected the outcome of the case, possibly resulting in a remand for reconsideration by the First Circuit. Here’s why.
THE PLAYPEN ARGUMENT
Recall that in Ackies both the district and appellate courts had accepted the Government’s argument that a cellphone could not be a ‘tracking device’ within the meaning of TDS 3117(b) and Rule 41(b)(4), because that definition necessarily entailed the physical installation of some hardware or equipment, like a transponder. Use of software installed on a smartphone to track the user’s location was therefore supposedly inconsistent with the plain meaning of the term “tracking device.”
Yet at the very same time Ackies’ case was proceeding, federal prosecutors were vigorously pushing the polar opposite position in federal courts around the country, often with success.
As part of a nationwide investigation called Operation Playpen, the FBI took over and ran a dark web site offering child pornography. As part of a plan to lure and identify website customers, the FBI sought and obtained a Rule 41 warrant by a magistrate judge in the EDVA authorizing deployment of software (a so-called Network Investigative Technique, or NIT) to identify the virtual visitors to the illicit site, now hosted by the FBI on a server within that district. Here is the Government’s explanation of how the NIT worked:
Under the NIT Warrant, the FBI installed the NIT on its server in the magistrate judge’s district, where it augmented the content of the Playpen website. As users logged into Playpen and downloaded its content, the NIT tracked the movement of that content from the server in the Eastern District of Virginia through the encrypted Tor network finally to the user’s computer. At that point the NIT caused the Playpen user’s computer to transmit specified and limited network information back to the government over the open internet, thus enabling the government to track the location where Playpen had been downloaded.
The warrant bore spectacular fruit, resulting in the prosecution of hundreds of individuals who had accessed the website from computers across the country. Whenever defendants challenged the warrant on jurisdictional grounds, the Government responded that the remotely-installed software was indeed a ‘tracking device’:
The NIT Warrant Is a Tracking Device Warrant Under Rule 41(b)(4)
Rule 41(b)(4) defines a “tracking device” as “an electronic or mechanical device which permits the tracking of the movement of a person or object.” 18 U.S.C. 3117(b); Fed. R. Crim. P. 41(a)(2)(E). The property a tracking device may monitor under Rule 41(b)(4) includes “information.” Fed. R. Crim. P. 41(a)(2)(A). A “device” is simply “a thing made or adapted for a particular purpose,” such as software, see e.g. Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 940 (2005) (referring to “the device, the software in this case”).
The NIT fits the definition of “tracking device.” As applied to older technologies, the rule contemplates that a tracking device may be a mechanical tool used to track the movement of a tangible object., like the beeper attached to a container of chloroform in United States v. Knotts, 460 U.S. 276 (1983). As applied to newer technologies, the rule envisions that a tracking device may be an electronic device used to track the movement of information—e.g. computer instructions embedded in digital content traveling through the internet.
The Government reiterated this “virtual tracking device” argument in dozens of courts around the country, with some success in lower courts. At least 19 district court decisions accepted the argument, holding that installation and monitoring of the NIT software was authorized by the tracking warrant provisions of Rule 41(b)(4) and 18 U.S.C. 3117.
The story is a bit different on appeal, but the outcome has been the same. Eleven circuits have now rejected challenges to the Playpen warrant based on the good faith exception to the exclusionary rule. Seven of those courts declined to consider the merits of the virtual tracking device argument, and merely assumed arguendo the warrant was not validly issued.
The remaining four circuit courts did consider the merits of the argument. Significantly, none of these circuits contested the Government’s premise that, in principle, deployment of tracking software could constitute a ‘tracking device’ installation within the meaning of the statute. Instead, they rejected the argument on two other grounds. First, the NIT did not monitor the movement of anything –it merely performed a one-time extraction of data identifying the targeted computers. Second, the NIT software was installed on out-of-district computers, thereby violating the venue condition of 3117(a) and Rule 41(b)(4). But again, all four courts appear to agree that installation of software can, in theory, be a tracking device.
So, looking at the scorecard, there is now an effective 4-1 circuit split on whether the TDS tracking definition is broad enough to encompass the use of tracking software on digital devices. The Third, Eighth, Ninth and Eleventh Circuits have all tacitly endorsed this proposition; only the First Circuit in Ackies has expressly rejected it.
For present purposes, the more relevant circuit split is 11-1: that is, the number of circuit courts in which the Government has vigorously argued that software can be a tracking device under the TDS versus the number of circuits in which Government has taken the opposite view. Even the most talented appellate advocate would have night sweats trying to defend the short end of that stick.
THE WALLACE CONCESSION
Nor is the Playpen argument the only landmine awaiting the next Government attorney who insists that cellphone pinging warrants are authorized under the SCA rather than the Tracking Device Statute and Rule 41(b)(4).
As discussed in an earlier post, the FBI since 2011 has instructed its agents that, because cellphone companies do not collect GPS location data in the ordinary course of business, SCA 2703 is not the appropriate vehicle to compel providers to generate such “ping” data as part of a criminal investigation. Instead, a Rule 41 warrant conforming to its tracking device rules should be obtained.
In U.S. v. Wallace, Government attorneys were compelled to concede the fundamental distinction between GPS ping data and cell tower data in order to correct an erroneous panel decision by the Fifth Circuit. No such clarification was made in the Ackies litigation, and this confusion likely contributed to the outcome on appeal.
THE DUTY OF CANDOR---NOT TO BE TRIFLED WITH
Government lawyers dodged two bullets when the Ackies cert petition was denied:
•their failure to clarify the factual distinction between cell tower data, created by the carrier in the ordinary course of its business, versus GPS ping data, created at the direction of law enforcement solely for use in a criminal investigation;
•their inconsistent legal position on whether tracking software fits within the statutory definition of a tracking device.
That luck is liable to run out if they continue seeking SCA ping warrants based on Ackies. Sooner or later an accounting will be due, and it is unlikely to be pleasant.
A possible preview is the reaction of an unhappy Eleventh Circuit judge to the defective NIT warrant application in the Playpen case. In a stinging partial dissent, Senior Judge Gerald Tjoflat charged the Government with breaching its duty of candor in submitting a jurisdictionally defective and misleading NIT warrant application. According to Judge Tjoflat, the law enforcement officials who sought the NIT warrant did not act in good faith, because they
knew or should have known that there was an issue with jurisdiction and that the search would occur outside the district. Yet, the officials told the magistrate repeatedly that the search would take place in the district. If the law condones this conduct, it makes a mockery of the warrant process.
Responding to the government contention that a single passage buried at page 29 of a 31-page affidavit somehow “cured” the warrant of ambiguity, Judge Tjoflat answered bluntly:
This sets too low a bar. It essentially gives officials permission to try to hoodwink magistrates: they can make false statements to the court so long as they include enough information to uncover their chicanery. . . I refuse to invite such gamesmanship.
I cannot believe that the law expects so little of law enforcement, or so much of magistrates. . . This is a system designed to encourage mistakes.
Instead, we should demand the utmost candor in warrant applications. Before today I thought we did. . . Otherwise, we excuse conduct, like the conduct at issue here, which invites strategic duplicity into the warrant process.
Strong words indeed. One wonders how much stronger they might have been had Judge Tjoflat known that the Government’s post hoc legal justification for the NIT warrant –the virtual tracking device argument—directly contradicted its legal position in Ackies.
Appellate courts take a dim view of litigants taking inconsistent positions in court. The Fifth Circuit has a dismissive term for such litigation tactics – “trifling with the court.” The practice is especially concerning when the trifling party is the Government itself, as explained in an oft-cited First Circuit opinion joined by then-Judge Stephen Breyer:
This inconsistency is troubling when its source is the prosecutorial arm of the federal government. It is one thing for private counsel to characterize events in contrasting ways in two separate litigations, because the counsel there is required under our adversary system to defend its clients in the most vigorous fair manner possible—counsel is expected to put the best possible gloss on a client’s case. The function of the United States Attorney’s Office, however, is not merely to prosecute crimes, but also to make certain that the truth is honored to the fullest extent possible during the course of the criminal prosecution and trial... The criminal trial should be viewed not as an adversarial sporting contest, but as a quest for truth. See Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash.U.L.Q. 279. …
Thus, it is disturbing to see the Justice Department change the color of its stripes to such a significant degree, portraying an organization, individual, or series of events as virtuous and honorable or as corrupt and perfidious, depending on the strategic necessities of the separate litigations.
One might add that, even in sporting events, there are limits to the degree of chicanery that can be tolerated without incurring damage to the institution itself. Just ask the Houston Astros.
A win-at-all-costs, bang-the-trash-can approach to criminal prosecutions may bring temporary success, but ultimately a larger toll will be exacted in the realm of professional credibility. As Abraham Lincoln once said, “This is a world of compensations.” In the end, it may not truly matter whether the DOJ deliberately engages in the “strategic duplicity” which Judge Tjoflat condemns. If judges begin to suspect that they do, the consequence will be lost confidence and heightened skepticism towards government warrant applications. Losing the benefit of judicial doubt would be a serious loss indeed for prosecutors.
In any event, the law of tracking device warrants should not be the hostage of prosecutors who trim the sails of their legal briefs to the friendlier breeze. Federal prosecutors now need to pick a side –either software can be a tracking device (as they have told 11 circuits), or it cannot (as they told the Ackies court). They will no longer be able to have it both ways. Federal courts are not to be trifled with.
 918 F.3d at 199.
 Id. at n. 5.
 Brief of the United States at 15, U.S. v. Smith, Case No. 18-11852 (11th Cir.) filed 10/02/2018.
 Id. at 15-16 (emphasis added, footnote omitted).
 As an aside, I should acknowledge paternity of this argument. In the first published opinion on government hacking (NIT) warrants, I raised the possibility that the requested NIT would qualify as a tracking device because its software would monitor the target computer’s physical location over a 30-day period. In re Warrant to Search a Target Computer at Premises Unknown, 958 F.Supp.2d 753, 758 (S.D. Tex. 2013). Even so, I concluded that the application did not satisfy Rule 41(b)(4)’s in-district installation requirement, because “the software would be installed on a computer whose location could be anywhere on the planet.” Id.
 See Brief of the United States, supra n. 3 at 10 n. 5 (collecting cases as of Oct. 2, 2018)). The cited decisions came from 12 different district courts: SD Ohio (2); EDVA (5); MD Fla (2); WD Tenn; MD Tenn; WD Mo (2); ND Ohio; ND WVA; ED Wis; MDNC; SD Tex; and WD Ark.
 U.S. v. Eldred, 933 F.3d 110 (2d Cir. 2019); U.S. v. Ganzer, 922 F.3d 579 (5th Cir. 2019); U.S. v. Moorehead, 912 F.3d 963 (6th Cir. 2019); U.S. v. Kienast, 907 F.3d 522 (7th Cir. 2018); U.S. v. McLamb, 880 F.3d 685 (4th Cir. 2018); U.S. v. Workman, 863 F.3d 1313 (10th Cir. 2017); U.S. v Levin, 874 F.3d 316 (1st Cir. 2017).
 U.S. v. Taylor, 935 F.3d 1279, 1285-86 (11th Cir. 2019); U.S. v. Henderson, 906 F.3d 1109, 1114 (9th Cir. 2019); U.S. v. Werdene, 883 F.3d 204, 212 (3rdCir. 2018); U.S. v. Horton, 863 F.3d 1041, 1047-48 (8th Cir. 2017).
 The First Circuit has the distinction of being on both sides of this ledger.
 U.S. v. Taylor, 935 F.3d at 1293.
 Id. at 1300.
 Id. at 1303.
 Id. at 1303-04.
 U.S. v. Cuevas-Sanchez, 821 F.2d 248, 250 (5th Cir. 1987) (disapproving government claim that video surveillance was not 4th Amendment ‘search’ because activities were in plain view, which contradicted warrant application statement that ordinary surveillance had been unsuccessful, the court wrote: “A juxtaposition of such contentions trifles with the Court.”).
 U.S. v. Kattar, 840 F.2d 118, 127 (1st Cir. 1988) (emphasis added).
 April 6, 1859 Letter to Henry L. Pierce.