Judge Henry Coke Morgan Jr of the District Court in the Eastern District of Virginia says that the FBI can hack your computer without a warrant.
Judge Morgan said that the defendant “has no reasonable expectation of privacy in his computer”, in part because the FBI only collected limited information.
The defendant is involved in a child porn case, which does not make him a very likable defendant.
As part of the investigation, the FBI took over a site called Playpen. When they did that, they changed the site so that it downloaded malware onto the computers of any visitors so that they could get information from the user’s computer.
In this case, the FBI actually did get a warrant, but the judge said that they really didn’t need to, because users don’t have an expectation of privacy on the Internet. According to the judge, the Fourth Amendment does not apply here.
The FBI doesn’t call it hacking, they call it a Network Investigation Technique or NIT and they could, according to this judge, do that you you or me, without a warrant, suspicion or probable cause and without any judicial oversight.
Of course, whether the malware the FBI placed on some computer did other things, such as break the computer or make it susceptible to hackers or capture more data than the FBI – apparently without a warrant – is entitled to, is less than clear.
Also remember that this malware that the FBI is deploying could be buggy. How do you know if the data collected by the malware is even accurate or came from the computer that the FBI said that it did. After all, the FBI is not disclosing this malware. There is another motion in this case to disclose this malware, which the judge, apparently, has not ruled on yet. But you would need more than the malware; you would need the entire chain of custody process from the user’s computer to the time it was used in court. Otherwise, what we know is that some data was collected from some computer and stored and some data, possibly different, was presented in court. Not very compelling.
It is likely that the judge had little understanding of what he was approving and after all, many people think that people who view child porn should be locked up and the key thrown away, which is hard to argue with. But the problem is that once the precedent is created, that logic can be used on any other case. It is the proverbial slippery slope.
It is not clear whether this defendant has the money to appeal this decision is not clear. Hopefully they will,
Information for this post came from Motherboard.