A Great Analysis of When Using Tor Does or Does Not Constitute Probable Cause for a Search Warrant
Edit2: Thanks for poking holes in this everyone. There are a couple leaps in logic in here that are concerning that I didn't see at first. And the poster definitely leaves out anything about what LE actually does as opposed to what they're supposed to do if they follow the rules. Of course, this was over in the law sub, so the poster wasn't speaking in the context of the DNMs. Even so, thanks for the good discussion.
Considering the Rule 41 insanity, I thought this would be useful information for people to actually understand more about search warrants and probable cause.
I can't take credit for this. It's by a smart person talking sense on another sub. I found it here.
using Tor in and of itself would not be probable cause for a warrant. I think this in part stems from a common misunderstanding about probable cause and how search warrants work. When it comes to search warrants, "probable cause" does not mean "probable cause to believe some person committed a crime." Arrest warrants care about that, but not search warrants (with the odd exception of search and seizure warrants in aid of arrest). Instead, when a court is evaluating the evidence supporting a search warrant, they are looking to see that it provides probable cause to believe that the places to be searched in the warrant are likely to contain the things that the warrant application seeks to seize. What are the permissible things that such warrants may seek to seize? Things that there is probable cause to believe constitute evidence of a crime, contraband, fruits of crime, or property designed for use, intended for use, or used in committing a crime. "Using Tor" is neither a place to be searched, nor a thing to be seized.
Now, that does not mean a person's use of Tor can't be a part of the probable cause determination in a search warrant application, it can be and often is. Driving a car also is, as is using the phone and using the internet. But none of these things, by themselves, would give rise to probable cause to believe a search of any particular place will yield evidence of a crime, contraband, fruits of crime, or property designed for use, intended for use, or used in committing a crime.
Edit: It's one of the responses in this post with a fearmongering bullshit title here. A lot of the responses are very illuminating, actually, particularly from that poster.
Posted Dec 3, 2016, 1:14 AM UTC · edited
The last paragraphs' first sentence pretty much invalidates his prior assumptions.
[deleted]
^^^^^^^^^^^^^^^^0.4984
How so?
If you're going to commit serious crimes, such as being a DNM vendor of a high-profile substance, your ultimate goal is to ensure that authorities have no evidence against you whatsoever.
If they have no information they can use to establish probable cause, they'll be unable to obtain a search warrant. They need clear, reliable information that hacking your computer is very likely to produce evidence of a serious crime. Using Tor by itself is not enough.
And it's been a long time since federal authorities have prioritized tracking down and punishing simple drug users, and usually when that's happened it's because they want to terrorize or marginalize a minority group, and drugs are a convenient channel. These days, an average joe DNM user is much more likely to get in trouble due to a mistake like a package ripping open than anything else. I don't see how that's going to change any time soon. They have bigger fish to fry, as we know.
DNM vendors get by either by being small fish or by having the best opsec.
When it comes to getting in trouble with the law, it's highly unlikely your use of Tor is going to be a factor in any way. They either have a lot more serious evidence against you or they don't.
That being said, there is a hypothetical scenario where the authorities get a warrant to hack a DNM and its users. This is what they did with the playpen illegal porn hidden service. They were able to hack and take over the hidden service, then they served up a javascript exploit on those who came and logged in. Of the thousands of real IPs they got, they decided to go after only a couple hundred of them.
But playpen was iirc set up by just one person. The DNMs are each run by a number of people, many with very good technical skills. Hacking a DNM these days might be a bit harder of a prospect because of this.
When you commit crimes over Tor you are taking some risk. That's just how it is. It will be in your best interest then to pay close attention to your opsec, follow best practices, and put yourself in the best position with the least amount of risk. Part of that is understanding what constitutes probable cause for a search warrant. Another part is disabling javascript and any other exploitable attack surface in your Tor browser and making sure your software is up to date and free of viruses/malware. Make yourself as unhackable as possible.
When you asked "How so?": read the first sentence in the quote article, then read the first sentence in the second paragraph. They are contradictions in terms of the assurances the article tries to proliferate.
As to the rest of the things you wrote, they are all valid, but aside from being quality sources of information orientation; I didn't see how it relates toward the inquiry you presented toward my prior statement. We have no disagreements.
As to a better explanation of the problem Rule 41 creates. It simply removes prior barriers LE faced during evidence gathering or warrant fortification applications toward judges. Now that is a good thing in the idealist sense of having the quintessential LE agency doing the work of keeping citizens safer and preventing the breaking of laws. The only issue in the real world is some laws are frivolous, and LE agencies are plagued with histories of abuse and working outside the realm of generally accepted limits to further the appearance that their relevancy should be at an all time high. On top of focusing on the breaking of laws that have very little impact on the people they are tasked to protect, when instead they can be used for other more serious cases of law breaking that lead to the suffering on a much higher scale e.g. - reeling in and bringing to justice the architects of the 2008 financial crisis.
Because they choose not to allocate more resources to those sort of cases, they can be avidly labeled as shills of sorts at least, and pawns of the masters of society at worst. Now with the topic at hand: Rule 41 simply goes against the privacy Constitutional rights established, it simply does away with those right's relevancy when compared to the relevancy of simply catching criminals. It's basically a message portraying the "statement" that "catching individual criminals is far more important than the privacy of all".
They are being granted more powers than most people deem to be necessary. That is a concern after you take some of those prior dark histories in which cases of exploitation have occurred even in the outside the realm of law thanks to whistleblowers and leaks. Aka PRISM program etc...
It also is a subliminal display of how they are shifting the balance of priority and power in their favor of which the masses haven't voted to grant them. The list goes on and on. When taken in totality I think the biggest lesson that most draw from this is the uneasy reality that shows how autonomous these agencies are becoming, and like most people; no one appreciates being subjected to a seemingly and constantly growing uncontrollable entity.
I think you're right that we are generally in agreement. I may have expounded too much, but I was trying to paint a picture of why I feel Tor use in and of itself doesn't mean much, and trying to color in the differences between Tor use by itself and the larger structure of a search warrant application.
You're comparing these two statements.
and
I'm still not clear how the second statement invalidates the first. This seems to be quite obvious to you, so we aren't seeing it in the same way.
Tor use can be part of a larger search warrant request. How does that fact negate the first statement? How does it imply that using Tor in and of itself would establish probable cause for a search warrant?
The second sentence basically says in translation: Tor can be and often is a part of the probable cause determination. But the first says it would not be as a sole reason for determination. While not full invalidation. It certainly does not follow the tone for the rest of the statements provided(as a means of quelling some sort of fear).
It is my personally strong and valid opinion that Tor use itself can be used as a precursor to narrowing the list of suspects very precisely. They have the capability to formulate a list of users and always follow up with free reign hacking against such users as a fish net sort of investigation. While it may not bring many results now, it doesn't cost them much trying to pluck relatively low hanging fruit, especially is the degradation of privacy laws continues from a citizen standpoint(which no one can deny is currently continuing to decline).
Let's say they hack enough people and find evidence of other sorts of undesired actions people have been taking, once future laws and criminal laws are established, these people can then be pinned for these other evidences that were found by chance while investigating a current case. The sole issue still remains, this is far too invasive and exploitative by nature, and only shows the willingness of governments to keep pushing what is seemingly invasions of privacy to become commonplace with respect to citizen complacency levels allowing such ingress. This is simply a piece of the frameworks that are being formulated, and they all exhibit a factor of being far too risky from an exploitative potential standard vs getting the benefits of solving crimes or keeping people safer.
Far to many times through history these sort of fear wrangling articles are posted in order to relax people. The problem is they take the arguments out of a more fuller context which should be a comparison to what these sorts of things like Rule 41 is doing when compared to the prior degradation of privacy laws, and also the future prospects of how it can get worse in the future with continuing efforts to abolish privacy (with probable cause due to recent political events in US history for example) like a President that believes in covert operations as a de facto method of making massive strides or result quotas. In summary: Rule 42 on its own is not the end of the world, but taken with a view of the events of the past that also degrade privacy, and future potential (based on frequency of the laws of the past have been enacted), you now have at least some serious need for worry as a citizen whether you are breaking any laws or not (remember, we are talking exclusively on your right to privacy).