United States v. Tippens

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The Fourth Amendment generally requires that before conducting a search, the government must submit a warrant application to a judge who is charged with upholding the Constitution’s prohibitions against unreasonable government searches. In order to determine whether a search is reasonable, the judge needs to know all relevant facts related to probable cause, particularity, and the manner in which the search will be executed.

United States v. Tippens involves a novel and wide-reaching warrant that enabled the government to conduct bulk hacking using malicious software into thousands of computers around the world. In a friend of the court brief filed in the case, the ACLU and the ACLU of Washington said the government provided incomplete and misleading information to the judge when it applied for the warrant. For example, the government failed to disclose to the judge important information about the risks posed by the malicious software it used to control people’s computers, including the risks of an overbroad search and the threat this malware posed to innocent third parties, and omitted its intent operate a child pornography website.

Obfuscation by the government of these and other crucial facts made it impossible for the judge to do her duty of independently evaluating whether the search the government sought to conduct was reasonable and narrowly tailored, as the Fourth Amendment requires.