The substance of a recent article in Vice’s Motherboard reveals a troubling government practice to proponents of strong Fourth Amendment rights – protection against illegal search and seizures. It documents the futility of an experienced federal judge in understanding how the FBI routinely hacks into suspects’ computers. The worrisome case demonstrates just one instance where a veteran judge, after hours of testimony, can’t see through the foggy FBI verbiage to understand, let alone accurately rule on the merits of, a digital search.
This being the case, how can a lower- level judge issuing a warrant be expected to know just what he is signing? Frankly, some judges may not fully realise the power and scope of the searches that they authorise.
Controversy is brewing over “Network Investigative Technique”(NIT), which is really a euphemism for the FBI using malware to hack into a suspect’s computer in order to obtain incriminating data. Of course, the word ‘hack’ neither is used in the language requesting a warrant, nor in subsequent court appearances. Also avoided are words such as “malware” and “exploit”. To some, this type of subterfuge smacks of the odious obfuscation the FBI employed regarding the cell-site simulating Stingrays, where they demanded that local law enforcement jurisdictions not divulge anything about their function or underlying technology.
An example concerns a case in the state of Washington, which involves a teacher who allegedly used a child porn website. Judge Robert Bryan appeared uninformed and confused about how the FBI’s malware works (even after lengthy explanations by the prosecution) due tof the vague language contained in the NIT warrants and supporting documents. Cutting to the chase, it quickly became obvious that Bryan, despite hearing the views of those who took part in the investigation, and having read the briefs submitted by the defense and prosecution several times, could not fully grasp what the NIT was doing. Nate Wessler, an ACLU attorney, opines that,
“It appears in this case, and that’s consistent with other cases we’ve seen elsewhere in the country involving use of malware, the government explanations and warrant applications are quite sparse, and do not fully explain to judges how these technologies works. When it comes to this kind of secret and hard to understand technological search, the government holds all the cards, and it is crucial that the government be very careful to explain itself fully and accurately.”
Also of tangential interest in this case (but not necessarily germane to the problem of NITs,) is the validity of the warrant, which was purported to be executed in a part of Virginia; but the NIT in question was used in the state of Washington in order to secure the damning data. While this is not pertinent to the NIT dilemma, it is illustrative of how, if left unchecked and without appropriate judicial oversight, law enforcement can run amok in the pursuit of a conviction.So while its director, James Comey, holds court over flashier issues like encryption backdoors, the FBI and its agents are playing fast and loose with the law as it suits them and sometimes employing despicable tactics.
So while director James Comey holds court over flashier issues such as encryption backdoors, the FBI and its agents are playing fast and loose with the law as it suits them, and sometimes employing despicable tactics.
But it may be shooting itself in the foot, and this matter of NITs may come back to haunt it, even as the FBI seeks encryption-weakening legislation. An argument by proponents of strong encryption is that the government is crying wolf on the issue – that they have many means at their disposal to secure vital information without relying on easy backdoors. They just have to use them more effectively. This NIT fiasco merely highlights one such tool, so now all the FBI has to do is transparently and adequately employ it.