These Playpen cases are all deriving their 4th Amendment bypass based on the IP Address = Phone Number analogy[0].

The judge in this case at least seems to understand where the others did not that the IP Address had to be obtained by questionable means.

But decision reads: "The Court notes, however, that perhaps malware is a better description for the program through which the provider of the pornography attempted to conceal its distribution of contraband over the Internet than for the efforts of the Government to uncover the pornography."

The conclusion is that Tor is more malware than the FBI spyware.

I am not entirely dissuaded by govt's logic re expectation of privacy. Most porn/torrent sites do attempt to install spyware/malware. Everyone knows this. Whether the govt should be doing this is another matter entirely.

I am more distressed by the fact that this judge is allowing the FBI to use this tool and not allowing defendant access to its source code in discovery. This is unacceptable.

[0]: [pdf] http://www.steptoe.com/assets/attachments/4903.pdf