Judge: FBI Can Hack Without Warrant Because Computers Get Hacked All the Time

https://www.techdirt.com/articles/20160624/05351534808/judge-says-fbi-can-hack-computers-without-warrant-because-computer-users-get-hacked-all-time.shtml

by fooey • 10 years ago

118 49 10 years ago

techdirt.com

meat_fist• 10 years ago

FBI can rob you at gunpoint because people get robbed at gunpoint all the time.

lowbloodsugar• 10 years ago

They aren't robbing you. They are seizing property that they found and which you are making wild claims of ownership based on the idea that it was in a backpack on your back.

tracker1• 10 years ago

It's not a criminal matter.. it's "civil" asset forfeiture... although if you resist, it is a criminal matter. :-/

pkaeding• 10 years ago

Sounds like civil asset forfeiture to me...

sajan80• 10 years ago

But the computer hacking is illegal even if it's done all the time. That's like saying that the FBI can pirate any movie it wants because piracy happens all the time.

sharemywin• 10 years ago

So they can break into your house because it happens all the time.

c3534l• 10 years ago

Especially by them.

r00fus• 10 years ago

Let's take it further - they can kill you because murder happens all the time.

The fallacy is strong with their reasoning...

dllthomas• 10 years ago

Prohibitions on murder aren't predicated on an expectation of not being murdered. Entirely different dynamic.

cmdrfred2• 10 years ago

Does the FBI have special powers that allow it to violate habeas corpus? No? So this ruling then means to me, "Anyone Can Hack Without Warrant Because Computers Get Hacked All the Time". Let's begin everyone.

nmap fbi.gov

RIMR• 10 years ago

More like:

nmap -p 1-65535 -T4 -A -v 153.31.0.0/16

fapjacks• 10 years ago

I would go even slower. Take your time. You have all night.

Fej• 10 years ago

Okay, come on now.

https://www.xkcd.com/932/

cbanek2• 10 years ago

Okay, so the FBI can do whatever it wants, just like anyone else. When they get caught, they should go to jail, just like anyone else.

paavokoya• 10 years ago

I see a point on the horizon now, where the legal system starts targeting a minority of honest, privacy-minded citizens in an attempt to diminish holes in their radar.

javajosh2• 10 years ago

Separation of powers is starting to lose it's luster. Nothing unites people more than a common enemy, and when "we the people" start to turn against "the government", the body of people that compose the government will tend to stick together tighter and tighter, to defend against the threat. One way this happens is favoritism, to give greater and greater leeway with the law to "us" (and less and less leeway to "them").

The problem with the judicial branch is the complexity of law, which makes it very difficult to second-guess it's outcomes. Our society has seemingly accepted this as inevitable, but a) I don't think it is, and b) if this complexity isn't addressed, then we will continue to suffer systematic abuse that comes from giving bad actors so much surface area to abuse and hide within.

cbanek2• 10 years ago

Agree completely.

Another related problem is that both parts of the judicial system (the agents looking for crimes, and the courts, and now also the prison/parole system) are all in bed with each other, when they should be balancing each other out.

Coupled with the fact that three letter agencies can get away with illegal activity themselves has really pushed over the boundaries of just government.

unclebucknasty• 10 years ago

the complexity of law...makes it very difficult to second-guess its outcomes.

Yes. And, this is coupled with the government's determination to exploit the letter of the law against its own citizenry; searching for loopholes and generous interpretations that clearly circumvent Constitutional intent.

The government is essentially attempting to establish a parallel set of precedents for new, technology-enabled capabilities. This "hacking happens" rationale is incredible. And, asserting that there is no reasonable expectation of privacy on an IP address is equally stunning.

At the end of the day, it is deference to the spirit of the Constitutional limitations placed on government that should guide the outcomes of these complex cases. That single litmus test would have a powerful clarifying effect on the adjudication process and on our ability to discern the validity of outcomes.

guard-of-terra2• 10 years ago

One day those people will be old and vulnerable and frankly I don't understand what they're counting on by pissing us like this.

brazzledazzle2• 10 years ago

Probably because they'll be dead before young people age into a group large enough to do anything about it.

guard-of-terra2• 10 years ago

I don't think they're so much older. I think we'll have a shot.

I for one bitter enough already to that day as to allocate considerable resources into making it even.

ZoeZoeBee2• 10 years ago

Millenials officially became the largest living generation this year, all are over 18

StanislavPetrov4• 10 years ago

Unfortunately this decision is yet another reminder of how horribly our system of laws has broken down. The Constitutional rights of every American are trampled on by the government every day, aided and abetted by the courts, while the rich and powerful routinely ignore the law with impunity. Very apropos that the very embodiment of corruption, Hillary Clinton, is poised to take over leadership of this country.

duaneb• 10 years ago

Very apropos that the very embodiment of corruption, Hillary Clinton

Oh come on now. Yes, her entire life is politics and it's hard to trust her. But the embodiment of corruption? Try Somalia. Or North Korea. Or Afghanistan. Or Eritrea. Or Russia. If Hillary were truly corrupt she wouldn't have made it to the presidential race as one of the most scrutinized human beings living today—being untrustworthy is not the same as being corrupt. Being "woke" is only useful if you actually use it to make good decisions, and the only decision you made today was to complain.

In any case, the country is perpetually trampling constitutional rights in order to work out jurisprudence—find me a president who hasn't blatantly violated violated human rights. (Yes, Obama, killing children remotely with drones is an extreme human rights violation.) The court has not stopped functioning as it was intended. If you disagree, become a judge and/or vote for someone with your viewpoints and get them to propagate worthy judges through the system.

Now, I happen to think the judge was incorrect, but maybe wait until it fully works its way through the court system before declaring that "the system of laws has broken down". The very fact you threw that in casually leads me to conclude you've never seen anything near anarchy. However, causing irrational civil unrest with panic about government corruption is a good way to accelerate problems—just look at the recent brexit vote.

StanislavPetrov4• 10 years ago

Yes, her entire life is politics and it's hard to trust her. But the embodiment of corruption?

Yes, corruption personified. The Clintons sit at the center of a criminal nexus of bribes, payoffs, embezzlement and perjury that stretches back decades. From cattle-trading futures, to Whitewater, to hundreds of 6 figure speeches, to countless millions raked in at their foundation, which acts as a giant money laundering machine. If you don't think Hillary is utterly corrupt you haven't learned enough about her. It isn't up for dispute. This is coming from someone who has been a registered Democrat for more then 25 years.

Now, I happen to think the judge was incorrect, but maybe wait until it fully works its way through the court system before declaring that "the system of laws has broken down". The very fact you threw that in casually leads me to conclude you've never seen anything near anarchy.

Your are drawing a flawed conclusion. Our government and courts exist to uphold the law and the Constitution. Our President and our government officials swear to uphold the Constitution, nothing about "national security". It isn't a choice between anarchy and the rule of law. There are plenty of dictatorships around the world that don't have anarchy or a functioning legal system where petitioners can find redress from government abuses - and that's the direction we are heading.

TallGuyShort2• 10 years ago

Went through a fun exercise yesterday: walked through all the amendments to the Constitution (especially the Bill of Rights) and discussed how many of them are essentially moot now because of all the exceptions that have already been made over the years. Surprisingly few are still absolute rights.

StanislavPetrov4• 10 years ago

Unfortunately you're absolutely right, which is why I said that this ruling is "another" reminder. Our steady descent into despotism didn't start with 9/11, but it has certainly accelerated since then, with our rights steadily being eroded away.

mtanski2• 10 years ago

You mean the second amendment? Because that one has been expanded in its interpretation. They skipped the whole part about "well regulated"

s_tec• 10 years ago

If a security researcher finds and reports a flaw in a system, they can get in trouble for unauthorized access. This is dumb, since we want flaws to be disclosed so they can be fixed. In a certain sense, systems that can be accessed, should be accessed.

The real problem isn't unauthorized access; it's what someone does with that access. Someone who gains access to information but does nothing with it hasn't really done anything wrong. The law should apply only when that access is used for harm (vandalism, corporate espionage, fraud, or whatever is relevant). Right now, the law penalizes the access itself, which is backwards.

If we apply this logic to the FBI, then sure, let them hack away. Without the due process of a warrant, however, none of the stolen information should be admissible in court. The problem isn't the hacking; it's making inappropriate use of stolen information.

aggie• 10 years ago

Unfortunately, the inadmissibility of evidence due to being obtained without warrant seems to be eroding: http://www.nytimes.com/2016/06/21/us/supreme-court-says-poli...

dmitrygr• 10 years ago

They hacked his computer. Causing modifications to it. How can they prove whatever they found was not planted there?

Usually computer forensics researchers, to have their evidence be admissible, use special devices that block write access to hard drives and such. Else it gets thrown out in court. Why is this different?

a3n• 10 years ago

Because some animals are more equal than others.

na85• 10 years ago

Indeed. Positively Orwellian.

coroutines• 10 years ago

The FBI seems like the least careful of all the agencies penetrating computers. NSA > Secret Service > CIA > FBI

They're either messing up an investigation or destroying their public image.

1) Accidentally resetting the Bernadino terrorist's iCloud password

2) Withdrawing its demands from Apple after significant backlash

3) Asking for the ability to inspect browser history without a warrant

4) Modifying the computers they're "lawfully" allowed to breach - can we trust this evidence in court?

Wouldn't trust them with more authority that's for sure.

woodman• 10 years ago

0) Carnivore.

I imagine the NSA would have preferred that to have not happened. To anthropomorphize the FBI: it is like an officer of Planned Parenthood who frequently goes off message, talking about head measurements and quoting Margaret Sanger.

https://en.wikipedia.org/wiki/Carnivore_(software)

corysama• 10 years ago

This seems to be a running theme.

"Technically, we are required to get a warrant to peek anywhere you have a reasonable expectation of privacy. But, you should know by now that we are everywhere. Therefore, you should never reasonably expect privacy. Therefore, we don't need a warrant."

escape_goat• 10 years ago

I am not a lawyer, and my understanding of what I have read is constrained by the relative inexperience I bring to it. However, I would encourage anyone who felt strongly about this matter to read through the reasoning of the actual decision [1], rather than relying upon the characterization presented by the tech dirt article. The techdirt article somehow manages to fail to see an entire forest due to the presence of a singular tree. The judge in this instance presents a laundry list of overlapping of reasons for denying the defendant's motion.

The truth is that the FBI investigators did not "hack without a warrant" in this instance, let alone without probable cause in the specific case of this defendant, and by the presented evidence appears to have given ample diligence to observing that the triggering conditions of the warrant were applicable.

The defence is advancing a theory that has the transmission of the defendant's IP over HTTP rather than HTTPS as a central complaint, plus the possibility that the FBI malware could have been insecure so as allow a malicious third party to falsely implicate to defendant.

It is on this basis that they feel the source code of the malware should be entered into evidence. It is the opinion of the judge that the defence has failed to establish any basis under which he might be convinced that the facts "sufficiently advanced the quantum of evidence" (whatever that is, really) so that a examination of a theory advanced by the defence warrants treatment as a possibility rather than a speculative hypothesis. He reiterates many times that the defence has made no attempt to perform a forensic investigation of the defendant's computer or establish any reason external to speculation that might give credence to their theory. This appears to be a basic standard of admissibility.

This is the context in which the judge brings up the theory that there is not a reasonable expectation to privacy adherent to the use of an IP address, which I find to be completely amazing. I do not understand how he comes by that belief. But to say that the judge has "ruled" this to be the case, as the tech dirt article does, might put you at risk of asserting a fallacious belief that appeared to be factually ignorant.

I do not know if this assertion on the judge's part grants a greater legal factuality to the argument, absent as it may be, were it to be later cited by others. I hope not. However, I can say that the ruling that the judge has made by no means comes anywhere close to relying upon the truth of this in arriving at his decision to reject the motion of the defendant. He is not simply reporting sufficient reason to rule against the defendant's request; instead, it seems he has felt inspired to list every single way in which every aspect of the reasoning they present to justify such a motion is (in his view) thoroughly and utterly without merit.

[1] https://assets.documentcloud.org/documents/2897490/Matish-Or...

Esau• 10 years ago

With this train of thought, then they shouldn't need a warrant to search your house because homes get broken into all the time.

ZoeZoeBee2• 10 years ago

This like saying law enforcement can break into your home and do whatever they'd like without a warrant, because burglaries happen all the time

anonbanker• 10 years ago

I'll wait until SCOTUS upholds this before I get too worried.

alexandercrohde• 10 years ago

Wow, this is the technical equivalent of "The FBI can pick the lock on your door and search your house without a warrant, because houses get broken into all the time"

Judge: FBI Can Hack Without Warrant Because Computers Get Hacked All the Time

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