Additional legal considerations / protective measures for exit operators

This mailing list topic got me thinking about exit relay considerations beyond just angry letters, so I wanted to open a thread to discuss considerations and proactive measures for exit operators which go beyond the normal subject of responding to abuse claims, and instead address possible law enforcement interest, i.e. issuance of a search warrant.

Mandatory disclaimer: I am not a lawyer, I have some amateur familiarity with US law, and I have little familiarity with laws outside the US. Much of what I know on the topic of search and seizure comes from Tyler Pitchford Esq.'s DEF CON 17 talk on the subject, as well as reading some search and seizure cases. Nothing here should be considered legal advice. All I have to say is also contextualized to US law since that’s all I’m personally familiar with.

So, if the situation were to arise that a US exit operator were raided because of something transmitted through their exit, then the following would likely be true:

  • During a search, the police may not search any location which could not reasonably contain the object of their search. Since computer data can occupy extremely tiny spaces (such as on a microSD card), virtually anything in the operator’s home would be within scope of search.
  • Any contraband found during the search would be subject to seizure and could be used as evidence against the operator. This likely remains true even though the operator can prove the search was justified by faulty information. The warrant was issued with probable cause and the search was performed in good faith, so anything found during that search is admissible as evidence, even if it’s not the subject of the search.
  • Computers and electronic devices owned by the operator may be seized pending investigation, and will likely not be returned for a very long time.

The easiest way to ideally avoid being raided is obviously to run your exit relay from somewhere other than your home. But for people who already pay for good internet and have hardware for such projects, paying a hosting company may be quite unappealing, and may require running a relay of significantly lower capacity than the operator would otherwise be capable of. Ultimately there are people who do run exits from their homes for whatever their reasons are, and I think supporting those ventures is important.

With all that in mind, a few thoughts occur to me. Perhaps someone with more legal knowledge than I would like to weigh in on these points:

  • If LE had done the diligence of investigating whether the traffic in question came from Tor, they may no longer have probable cause for search.
  • There’s an interesting bit of perverse incentive for LE not to investigate this before searching. If they don’t investigate whether the traffic came from Tor, they maintain justification for search and can still submit as evidence anything unrelated they do find during their search. Whereas if they do investigate this, they potentially lose it.
  • As Tor Exit Guidelines discusses, it may be valuable to educate LE about your relay - but could doing so give you protection beyond just their goodwill? If the LE division in question is aware that you are an exit operator, do they still have probable cause for search if they see something bad emerge from your network?
  • If you are able to register a public IP address for your home to an LLC, does LE approach likely/necessarily change? At what point does the approach switch from raiding the IP’s associated physical address to submitting a subpoena to it?