The FBI's search will not take place in the "airy nothing of cyberspace" but rather in a physical space in specific location. Since the government does not know where the computer is located, its warrant request does not meet the territorial limits rule of the statute under which the warrant is being sought, Smith said.
The government's warrant request also offers few specifics on how it would search for the target computer and ensure that only the suspect or suspects in the attempted cyberheist would be monitored, he said. Those involved in cybercrime often spoof IP addresses, so it is possible the target computer belongs to an innocent victim.
Similarly, the computer used by the suspect, could also be used by others who were not involved in any illicit activity, the judge said. "What if the target computer is located in a public library, an Internet caf or a workplace accessible to others?"
The judge also rejected the FBI's assertion that investigators would use the built-in camera only to do "photo monitoring" of the suspect as opposed to video surveillance. It's a distinction without a difference, the judge maintained.
"In between snapping photographs, the government will have real time access to the camera's video feed. That amounts to video surveillance."
The government failed to show what other methods it might use or why it needs to resort to video surveillance to track down the suspect, the judge said. There is nothing in the warrant to show how the government will avoid monitoring innocent users or collecting data about them from the target computer. As a result the government has failed to meet Fourth Amendment standards for video surveillance, he said.
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