It just got a lot easier for law enforcement agents to hack anonymous computers over the internet. Last night, the Supreme Court approved changes to the rules of criminal procedure, enabling warrants for searches of remote computers, regardless of their physical location. That kind of warrant is particularly important for law enforcement hacking techniques, which typically target anonymous accounts or devices without knowing their physical location or identity. The changes are due to take effect in December, unless Congress passes countermanding legislation in the interim.
A number of experts have criticized hacking warrants as granting unnecessarily broad powers. In a 2014 editorial, law professor Ahmed Ghappour argued the warrants would result in widespread intrusions into other countries, potentially violating other countries' sovereignty. "Overseas cyber operations will be unilateral and invasive," Ghappour wrote. "They will not be limited to matters of national security; nor will they be executed with the consent of the host country."
"Overseas cyber operations will be unilateral and invasive."
Hacking warrants have already come into play in at least one high-profile court case. In one recent operation, the FBI infiltrated the servers of a Tor hidden service site known for distributing child pornography. Rather than taking down the site immediately, the FBI continued to operate the site for nearly two weeks, distributing tracking malware to anyone who loaded a page. The case ultimately resulted in more than 3,000 leads for Europol, spanning across Denmark, Greece, and Chile.
The FBI obtained a warrant to justify the operation, based on the logic that investigators had probable cause to believe anyone visiting the site was obtaining and sharing child pornography. But that warrant has proven legally controversial, and a number of judges have argued that any resulting evidence should be thrown out. One defendant's lawyer claimed that the court's order "effectively authorizes an unlimited number of searches, against unidentified targets, anywhere in the world."
Some legislators have already adopted similar thinking. Sen. Ron Wyden (D-OR) has already pledged to introduce legislation that would reverse the ruling. "These amendments will have significant consequences for Americans’ privacy and the scope of the government’s powers to conduct remote surveillance and searches of electronic devices," Wyden said in a statement on Thursday. "Substantive policy changes like these are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process."