• Tag Archives hacking
  • The Fight Against General Warrants to Hack Rages On

    The federal government thinks it should be able to use one warrant to hack into an untold number of computers located anywhere in the world. But EFF and others continue to make the case that the Fourth Amendment prohibits this type of blanket warrant. And courts are starting to listen.

    Last week, EFF pressed its case against these broad and unconstitutional warrants in arguments before a federal court of appeals in Boston, Massachusetts. As we spelled out in a brief filed earlier this year, these warrants fail to satisfy the Fourth Amendment’s basic safeguards.

    The case, U.S. v. Levin, is one of hundreds of prosecutions resulting from the FBI’s 2015 seizure and operation of a child pornography site “Playpen.” While running the site, the FBI used malware—or a “Network Investigative Technique” (NIT), as they euphemistically call it—to infect computers used to visit the site and then identify those visitors. Based on a single warrant, the FBI ended up hacking into nearly 9,000 computers, located in at least 26 different states, and over 100 countries around the world.

    But that’s unconstitutional. One warrant cannot allow law enforcement to hack into thousands of computers wherever they are in the world. As law enforcement defended these blanket hacking warrants and pushed for federal rule changes to allow them—and as Congress stood by and idly let this rule change go into effect—we’ve been fighting in court to make sure that the Fourth Amendment’s protections don’t disappear as law enforcement begins to rely on hacking more and more.

    And there are signs that courts are beginning to recognize the threats to privacy these warrants pose. Earlier this year, a federal magistrate judge in Minnesota found [PDF] that the warrant the FBI relied on in the Playpen case—the same warrant we were arguing against in Levin—violated the Fourth Amendment.

    In the February report, Magistrate Judge Franklin Noel described how the government’s NIT fails the Fourth Amendment’s requirement that warrants describe a particular place to be searched, agreeing with arguments we’ve made to courts in other Playpen prosecutions. The warrant in this case fails to satisfy that requirement because, at the time the warrant was issued, “it is not possible to identify, with an specificity, which computers, out of all of the computers on earth, might be searched pursuant to this warrant,” Noel wrote.

    He also explained how the warrant essentially flips the Fourth Amendment’s particularity requirement on its head, searching and then identifying specific computers instead of identifying specific computers and then searching them. “Only with [information gathered through the use of malware] could the Government begin to describe with any particularity the computers to be searched; however, at that point, the computer had already been searched.”

    It’s encouraging that courts are beginning to agree with arguments from us and others that these warrants far exceed the Fourth Amendment’s limits on government searches.

    As the Playpen prosecutions begin to work their way up to the courts of appeals, the stakes become higher. The decisions these courts reach will likely shape the contours of our constitutional protections for years to come. We’ve filed briefs in every appeal so far, and we’ll continue to make the case that unfamiliar technology and unsavory crimes can’t justify dispensing with the Fourth Amendment’s requirements altogether.



    Source: The Fight Against General Warrants to Hack Rages On | Electronic Frontier Foundation


  • D.C. Circuit Court Issues Dangerous Decision for Cybersecurity: Ethiopia is Free to Spy on Americans in Their Own Homes

    The United States Court of Appeals for the District of Columbia Circuit today held that foreign governments are free to spy on, injure, or even kill Americans in their own homes–so long as they do so by remote control. The decision comes in a case called Kidane v. Ethiopia, which we filed in February 2014.

    Our client, who goes by the pseudonym Mr. Kidane, is a U.S. citizen who was born in Ethiopia and has lived here for over 30 years. In 2012 through 2013, his family home computer was attacked by malware that captured and then sent his every keystroke and Skype call to a server controlled by the Ethiopian government, likely in response to his political activity in favor of democratic reforms in Ethiopia. In a stunningly dangerous decision today, the D.C. Circuit ruled that Mr. Kidane had no legal remedy against Ethiopia for this attack, despite the fact that he was wiretapped at home in Maryland. The court held that, because the Ethiopian government hatched its plan in Ethiopia and its agents launched the attack that occurred in Maryland from outside the U.S., a law called the Foreign Sovereign Immunities Act (FSIA) prevented U.S. courts from even hearing the case.

    The decision is extremely dangerous for cybersecurity. Under it, you have no recourse under law if a foreign government that hacks into your car and drives it off the road, targets you for a drone strike, or even sends a virus to your pacemaker, as long as the government planned the attack on foreign soil. It flies in the face of the idea that Americans should always be safe in their homes, and that safety should continue even if they speak out against foreign government activity abroad.  

    Factual background

    Mr. Kidane discovered traces of state-sponsored malware called FinSpy, a sophisticated spyware product which its maker claims is sold exclusively to governments and law enforcement, on his laptop at his home in suburban Maryland. A forensic examination of his computer showed that the Ethiopian government had been recording Mr. Kidane’s Skype calls, as well as monitoring his (and his family’s) web and email usage. The spyware was launched when Kidane opened an attachment in an email. The spying began at his home in Maryland.

    The spyware then reported everything it captured back to a command and control server in Ethiopia, owned and controlled by the Ethiopian government. The infection was active from October 2012 through March 2013, and was stopped just days after researchers at the University of Toronto’s Citizen Lab released a report exposing Ethiopia’s use of FinSpy. The report specifically referenced the very IP address of the Ethiopian government server responsible for the command and control of the spyware on Mr. Kidane’s laptop.

    We strenuously disagree with the D.C. Circuit’s opinion in this case. Foreign governments should not be immune from suit for injuring Americans in their own homes and Americans should be as safe from remote controlled, malware, or robot attacks as they are from human agents. The FSIA does not require the courts to close their doors to Americans who are attacked, and the court’s strained reading of the law is just wrong. Worse still, according to the court, so long as the foreign government formed even the smallest bit of its tortious intent abroad, it’s immune from suit. We are evaluating our options for challenging this ruling.

    Source: D.C. Circuit Court Issues Dangerous Decision for Cybersecurity: Ethiopia is Free to Spy on Americans in Their Own Homes | Electronic Frontier Foundation

  • The Playpen Story: Some Fourth Amendment Basics and Law Enforcement Hacking

    It’s an old legal adage: bad facts make bad law. And the bad facts present in the Playpen prosecutions—the alleged possession and distribution of child porn, coupled with technology unfamiliar to many judges—have resulted in a number of troubling decisions concerning the Fourth Amendment’s protections in the digital age.

    As we discussed in our previous post, courts have struggled to apply traditional rules limiting government searches—specifically, the Fourth Amendment, the Constitution’s primary protection against governmental invasions of privacy—to the technology at issue in this case, in some cases finding that the Fourth Amendment offers no protection from government hacking at all. That’s a serious problem.

    In this post, we’ll do two things: explain the Fourth Amendment “events”—that is, the types of searches and seizures—that take place when the government uses malware, explain how some of the courts considering this issue have gone astray (and some have gotten it right), and what all this means for our digital rights.

    Hacks, searches, seizures, and the Fourth Amendment

    The Fourth Amendment generally prohibits warrantless law enforcement searches and seizures. A Fourth Amendment “search” occurs when the government intrudes on an area or information in which a person has a reasonable expectation of privacy. A “seizure” occurs when the government substantially interferes with a person’s property or their liberty.

    As we’ve spelled out in an amicus brief filed in a number of the Playpen prosecutions, when the government hacks into a user’s computer, a series of significant Fourth Amendment searches and seizures occur:

    Each use [of the government’s malware] caused three Fourth Amendment events to occur: (1) a seizure of the user’s computer; (2) a search of the private areas of that computer; and (3) a seizure of private information from the computer.

    First, the government’s malware “seized” the user’s computer. More specifically, the execution of the government’s code on a user’s device “meaningful[ly] interfered” with the intended operation of the software: it turned a user’s computer into a tool for law enforcement surveillance. By hacking into the user’s device, the government exercised “dominion and control” over the device. And that type of interference and control over a device constitutes a “seizure” for Fourth Amendment purposes.

    Next, the government’s code “searched” the device to locate certain specific information from the computer: the MAC address, the operating system running on the computer, and other identifying information. In this instance, where the search occurred is central to the Fourth Amendment analysis: here, the search was carried out on a user’s personal computer, likely located inside their home. Given the wealth of sensitive information on a computer and the historical constitutional protections normally afforded peoples’ homes, a personal computer located within the home represents the fundamental core of the Fourth Amendment’s protections.

    Finally, the government conducted a “seizure” when its malware copied and sent the information obtained from the user’s device over the internet and back to the FBI. (As an aside, it was sent unencrypted—but more on that in a later blog post about the evidentiary issues arising from these cases.) For its part, the government doesn’t even contest that the copying of this information is a seizure: it described that information as the “information to be seized” in the warrant.

    Law enforcement deploying malware against a user in this way should, from a constitutional perspective, be understood the same way as if the search were carried out in the physical world: a police officer physically taking a computer away, looking through it for identifying information, and writing down the information the officer finds for later use. 

    Fourth Amendment principles meet digital dissonance

    In the physical world, courts would have no problem recognizing the Fourth Amendment consequences of law enforcement physically seizing and searching a computer. Yet, the Playpen cases, and the relatively unfamiliar technology at issue in them, have complicated the application of settled Fourth Amendment law.

    Some courts have held that the Fourth Amendment was not implicated by the government’s malware, incorrectly focusing on the information obtained from the search—critically, the IP address—and not how and where the searches and seizures occurred. Those courts have relied on a separate line of cases that held that, when the government obtains an IP address from an ISP or other third party, the user lacks a reasonable expectation of privacy in the IP address, precisely because it was in the hands of a third party.

    Even if we agreed with that precedent (generally, we don’t), it has no application to the Playpen cases. The government didn’t obtain the IP address and other information from a third party: it got it directly from searching and seizing the user’s device. As one court correctly held:

    The government is not permitted to conduct a warrantless search of a place in which a defendant has a reasonable expectation of privacy simply because it intends to seize property for which the defendant does not have a reasonable expectation of privacy. For example, if [the defendant] had written his IP address [] down on a piece of paper and placed it on his desk in his home, the government would not be permitted to conduct a warrantless search of his home to obtain that IP address. The same is true here.

    As we wrote before, one court went so far as to say that the defendant had no reasonable expectation of privacy—and, thus, no Fourth Amendment protection—in a personal computer, located within a private home, because it was connected to the Internet. Personal computers inside the home should receive the greatest Fourth Amendment protection, not none at all, so it was deeply concerning to see a judge reach that conclusion.

    Essentially, that court held that software vulnerabilities are akin to broken blinds in a person’s house, which allow the government to peer in and see illegal activity—an investigative technique that, although creepy, does not require a warrant. The court held that “Government actors who take advantage of an easily broken system to peer into a user’s computer” are essentially peering in through the digital equivalent of broken blinds.

    Setting aside the difference between looking in a window from the street and actively hacking a computer, tying the protections of the Fourth Amendment to the relative strength of security measures sets a dangerous precedent. Many (if not most) physical security features, like a lock on a door, are easily defeated, yet no court would conclude that the government can warrantlessly search a home, simply because the lock could be picked.

    What these decisions mean for the law of government hacking

    There’s cause for concern about these decisions, but it’s not quite time to panic.

    The legal rules that could ultimately flow from decisions, like those described above—that the government may warrantlessly search an electronic device so long as it is only obtaining information that, in other contexts, has been disclosed to a third party; or that the government’s ability to warrantlessly search devices is checked only by their technological capacity to do so—are very bad for privacy, to say the least.

    Fortunately, the decisions so far have all been at the district court level. That means that although another court might consider the decision persuasive, the decisions do not establish legal rules that other courts or the government must follow. It will be critically important to watch these cases on appeal, though. Decisions of the federal courts of appeals and the Supreme Court are binding on other courts and the government, so the rules the Playpen cases generate on appeal will create lasting legal rules.

    Nevertheless, the cases are still creating a body of troubling decisions in an area that, until now, was relatively lightly covered in the federal courts, creating a kind of bedrock layer of precedent for government hacking. Before the Playpen prosecutions, only a handful of decisions involving government hacking existed; when these cases are all said and done, there may be a hundred. That makes it all the more critical that we get these cases right—and set the right limits on government hacking—at the outset.

    Source: The Playpen Story: Some Fourth Amendment Basics and Law Enforcement Hacking | Electronic Frontier Foundation