Department of Justice Journal of Federal Law and Practice
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DEPARTMENT OF JUSTICE JOURNAL OF FEDERAL LAW AND PRACTICE Volume 69 May 2021 Number 3 Director Monty Wilkinson Editor-in-Chief Christian A. Fisanick Managing Editor E. Addison Gantt Associate Editors Gurbani Saini Philip Schneider Law Clerks Rachel Buzhardt Joshua Garlick Rebekah Griggs Mary Harriet Moore Garrett Simpson United States The Department of Justice Journal of Department of Justice Federal Law and Practice is published by Executive Office for the Executive Office for United States United States Attorneys Attorneys Washington, DC 20530 Office of Legal Education 1620 Pendleton Street Contributors’ opinions and Columbia, SC 29201 statements should not be considered an endorsement by Cite as: EOUSA for any policy, 69 DOJ J. FED. L. & PRAC., no. 3, 2021. program, or service. Internet Address: The Department of Justice Journal https://www.justice.gov/usao/resources/ of Federal Law and Practice is journal-of-federal-law-and-practice published pursuant to 28 C.F.R. § 0.22(b). Page Intentionally Left Blank Technology & Law In This Issue Introduction ........................................................................................ 1 Puneet V. Kakkar & Jo seph Wheatley Overcoming Technical Obfuscation: NITs and Remote Search Warrants ................................................................................. 3 Puneet V. Kakkar & Joseph Wheatley Introduction to the FinTech Ecosystem ...................................... 23 Jill Westmoreland Rose, Kelli Andrews, & Karyn Kenny Privilege in Data Breach Investigations ..................................... 39 Brian Mund & Leonard Bailey Using Blockchain Analysis From Investigation to Trial .......... 59 C. Alden Pelker, Christopher B. Brown, & Richard M. Tucker Prosecuting Sex Trafficking Cases in the Wake of the Backpage Takedown and the World of Cryptocurrency ........ 101 Jane Khodarkovsky, April N. Russo, & Lauren E. Britsch Finding Clarity in Crisis: How Technological Challenges Present Investigative Opportunities in the Time of a Pandemic .......................................................................................... 127 Denise O. Simpson & Nathaniel C. Kummerfeld From Beepers to Smartphones: Challenges in Applying Title III to Modern Communication Technology ..................... 141 Jeffrey S. Pollak, Douglas D. Guidorizzi, & Shanai T. Watson Carpenter’s Practical Implications for Law Enforcement and the Fourth Amendment ......................................................... 159 Annamartine Salick & Anil J. Antony Surfing the First Wave of Cryptocurrency Money Laundering ...................................................................................... 183 Alexandra D. Comolli & Michele R. Korver Know Before You Go: Navigating Double Jeopardy Issues When Your Investigation Heads to Europe .................. 237 Christen Gallagher Crime in the Sky—Prosecuting Drone Offenses ...................... 255 Matthew J. Cronin Technology & Law In This Issue DOJ and Drones: Protection, Policy, and Enforcement .......... 275 Colin T. Ross & Kevin M. Jinks Recent Case Law Developments Involving the Crime–Fraud Exception: The Attorney–Client Privilege, Filter Teams Protocols, and Other Privileges ........................... 289 Gretchen C. F. Shappert & Christopher J. Costantini Note From the Editor-in-Chief ..................................................... 355 Christian A. Fisanick Introduction Puneet V. Kakkar Deputy Chief, International Narcotics, Money Laundering, and Racketeering Section Central District of California on detail as the Resident Legal Advisor, Gulf Region Joseph Wheatley Former Deputy Director Joint Task Force Vulcan The Department of Justice (Department), since its establishment over 150 years ago, remains steadfast in its mission to “ensure [the] fair and impartial administration of justice for all Americans.”1 To carry out that mission, it must keep pace with the ever-changing landscape of criminal activity and the various ways that technology shapes that landscape—including the facilitation, prevention, investigation, and prosecution of criminal activity. Moreover, it must ensure that the nature and approach of its litigation manages such challenges. This issue of the Department of Justice Journal of Federal Law and Practice (DOJ Journal) addresses some of the dynamic technological challenges that federal prosecutors, agents, analysts, paralegals, and other personnel face on a regular basis around the country, from investigations to litigation. Building off the May 2020 issue of the DOJ Journal, which focused on developing eLitigation skills and proficiencies to keep pace with ever-advancing technology in the context of producing electronic discovery and the entire lifecycle of electronic evidence,2 this issue turns the perspective towards technology-based criminal activities and technology-based strategies and tools for investigating and prosecuting cases. Articles in this issue focus on, among other things, the impact that the fast-changing fields of cryptocurrency and FinTech have on our traditional understanding of best practices for prosecuting bad actors. Authors in this issue have also explored constitutional and statutory issues that lie at the heart of criminal investigations involving advanced technology, from remote search warrants to drones to 1 About DOJ, U.S. DEP’T OF JUST., https://www.justice.gov/about (last visited Apr. 26, 2021). 2 68 DOJ J. Fed. L & Prac., no 3, 2020. May 2021 DOJ Journal of Federal Law and Practice 1 interception of communications. Finally, this issue also covers some of the practical issues that arise in every litigation, but more so in the technological context, such as unique issues in extraditions and the attorney–client privilege. These articles, drawing from the institutional knowledge and experience of our colleagues, provide timely and valuable insights and guidance about dynamic technological issues that impact the Department and its mission every day. The articles reflect that the Department has successfully addressed new technological challenges in a variety of areas and is prepared to tackle new ones going forward. 2 DOJ Journal of Federal Law and Practice May 2021 Overcoming Technical Obfuscation: NITs and Remote Search Warrants Puneet V. Kakkar Deputy Chief, International Narcotics, Money Laundering, and Racketeering Section U.S. Attorney’s Office for the Central District of California on detail as the Resident Legal Advisor, Gulf Region Joseph Wheatley Former Deputy Director Joint Task Force Vulcan I. Introduction The Government’s efforts to contain child pornographers, terrorists and the like cannot remain frozen in time; the Government must be allowed to utilize its own advanced technology to keep pace with our world’s ever-advancing technology and novel criminal methods.1 With criminal activity increasingly leveraging technology—from the darknet to encrypted platforms of communication to cryptocurrency2— law enforcement has utilized more advanced measures of obtaining evidence and uncovering criminal activity that respects and remains consistent with the Fourth Amendment of the U.S. Constitution. In the past year alone, criminal actors have used advanced technology to 1 United States v. Matish, 193 F. Supp. 3d 585, 622 (E.D. Va. 2016). 2 See generally U.S. DEP’T OF JUST., OFF. OF THE DEPUTY ATT’Y GEN., REPORT OF THE ATTORNEY GENERAL’S CYBER-DIGITAL TASK FORCE (2020), https://www.justice.gov/ag/page/file/1326061/download. May 2021 DOJ Journal of Federal Law and Practice 3 further—and conceal their involvement in—child exploitation,3 cybercrime,4 drug trafficking,5 and terrorist finance.6 To unmask these criminal activities and actors, investigators and prosecutors have obtained search warrants in various scenarios for permission to deploy technological measures, known as network investigative techniques (“NIT warrants”) or “remote search warrants,” to remotely search computers or other accounts without the consent or knowledge of the users. This article provides a brief explanation about the practical applications of NIT warrants and remote search techniques; the venues where they may be obtained, made clear by a recent amendment of Rule 41; legal challenges before this amendment; recent applications of these techniques; and legal challenges they may face based on historical context.7 II. About NITs, remote search techniques, and their uses NIT warrants and remote searches are two recurring applications of Rule 41 in investigations where criminal actors attempt to obfuscate their identities and presence. NITs have been used over the past decade in significant criminal investigations. NITs allow investigators to ascertain more information about computers—and the individuals using computers—connected to a network by deploying a code or program to the computers. For example, NITs can obtain information about a computer’s IP address, 3 E.g., Press Release, U.S. Dep’t of Justice, South Korean National and Hundreds of Others Charged Worldwide in the Takedown of the Largest Darknet Child Pornography Website, Which was Funded by Bitcoin (Oct. 16, 2019). 4 E.g., Press Release, U.S. Dep’t of Justice, Six Russian GRU Officers Charged in Connection with Worldwide Deployment of Destructive Malware and Other Disruptive Actions in Cyberspace (Oct. 19, 2020). 5 E.g., Press Release, U.S. Dep’t of Justice, Alleged Southern California Narcotics Traffickers Among Those Charged in International Crackdown Targeting Darknet Dealers (Sept. 22, 2020). 6 E.g., Press Release, U.S. Dep’t of Justice,