AboveTheLaw - Tor hacks: The FBI Can Keep Its Code, Or Its Criminal, Not Both
Rayzer
rayzer at riseup.net
Wed Jun 22 11:47:41 PDT 2016
U.S. District Judge Robert Bryan ordered the FBI to produce
the full code of its malware.
The government refused.
I’m not making that up.
A federal judge told the government to do something and the
FBI essentially said, “How you gonna make me?”
This is not good.
I thought Apple had a really solid argument for refusing to help the
government hack into one of their phones that was used by the San
Bernardino shooter. The government eventually figured out how to do
it without Apple’s help, but I don’t think a company should be
forced to break its own system.
Same goes for the government. I don’t think the government should be
compelled to reveal its code for catching criminals. Don’t get me
wrong, I do think the government should be compelled to reveal that
it has a code or a hack or some malware that allows it to spy on us.
I think they should have to explain in plain English how it works,
and I think we should be able to have a national, public
conversation about whether or not we want to the government to have
this kind of power. But I see limited upside in forcing the
government to reveal the actual code for its software, if it doesn’t
want to and reasonably believes that revealing the code would do
real harm.
However, there are consequences to that position. If the government
obtains evidence against you, you have the right to know how they
did it. If the government doesn’t want to reveal that to you, well,
then you get to take a walk. That might sound “unfair” to the vast
majority of Americans who would trade seemingly all their liberties
for a little enhanced security, but the Fourth Amendment is there to
protect you from the government even when you don’t know you need
protecting.
All of these competing interests are coming to a head in a
Washington case involving an alleged child pornographer. The FBI
obtained evidence against Jay Michaud, a local teacher, by placing
malware on a Tor site frequented by “dark web” users.
Michaud’s attorneys would like to see the code used by the
government to gather evidence against their client. Normally, that’s
a pretty standard and reasonable request. Unfortunately, other dark
web users would also really like to know how the FBI is catching
them. Getting their hands on the code would be huge. Even if the
code is produced in “sealed” documents, we can’t pretend that we
live in a leak-free world.
U.S. District Judge Robert Bryan ordered the FBI to produce the full
code of its malware.
The government refused.
I’m not making that up.
A federal judge told the government to do something and the FBI
essentially said, “How you gonna make me?”
This is not good. This is a borderline constitutional crisis. In
response, Judge Bryan tossed the evidence against Michaud obtained
by the malware, but allowed the case to continue. On Simple Justice,
Scott Greenfield has written passionately about how Judge Bryan
caved to pressure from the executive branch.
(Judge Kneels And Welcomes His Governmental Overlords link)
I don’t think the FBI should be compelled to release its code. I’m
reminded of when the Allies broke the Enigma code, a story recently
popularized in the movie The Imitation Game. Once we broke the
German code, we didn’t stop every attack we knew was coming.
Preserving the hack was more important than preventing individual
losses. People died because we didn’t want to reveal what we had.
There were consequences to our decision.
Here, Judge Bryan should have tossed the whole case against Michaud.
That should be the consequence of the FBI’s decision. Yes, that
means one alleged child pornographer and teacher goes free. Yes,
that is unfortunate. But if the FBI really wants to protect its
code, then they should be willing to give up this one guy for all of
the information they are getting through using this hack.
It’s a difficult decision, but if the FBI and Judge Bryan don’t want
to make it, they should get into the cupcake business and leave the
balancing of liberty and security to sterner men and women.
Prosecute the alleged criminal under the agreed upon rules that are
there to protect all of us, or do not. There is no try.
With links onsite:
http://www.atlredline.com/the-fbi-can-keep-its-code-or-its-criminal-not-both-1779910675
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