Defense Attorney Guide To Foiling FBI Malware NIT Investigations

[grarpamp]

https://arstechnica.com/tech-policy/2017/03/doj-drops-case-against-child-porn-suspect-rather-than-disclose-fbi-hack/
https://arstechnica.com/tech-policy/2017/04/to-keep-classified-docs-from-wikileaks-secret-doj-drops-2-child-porn-counts/
https://arstechnica.com/tech-policy/2017/03/to-fight-tor-hack-prosecutions-activist-groups-offer-up-legal-help/
https://www.documentcloud.org/documents/3532835-Malware-Guide-3-30-17.html

The new 48-page guide—authored by the Electronic Frontier Foundation,
the American Civil Liberties Union, and the National Association of
Criminal Defense Lawyers—seeks to:

…educate defense attorneys about these highly intrusive surveillance
techniques and to help them prepare a zealous defense on behalf of
their clients against secretive and potentially unlawful hacking. Such
hacking has never been discussed by Congress, and we in no way endorse
government hacking. However, given that the federal government is
deploying malware and a recent amendment to Rule 41 only makes such
deployment easier, it is our goal to ensure that all uses of malware
are subject to meaningful Fourth Amendment analysis so that malware is
installed only when supported by individualized suspicion. Our Fourth
Amendment right to be free from unreasonable searches applies
regardless of whether new technology is involved in effectuating a
particular search; however, the law may be slow to catch up,
particularly when the government goes to great lengths to hide details
about its use of new surveillance techniques.

Because, as described below, nearly every challenge to the government's use of
malware to date has arisen in the context of watering hole attacks on child
pornography sites, this report focuses on that context. 8 As with all
new technologies,
however, the government's use of malware will expand to other contexts
and may be
used for increasingly intrusive searches. 9 Therefore, this guide
highlights good
precedent and offers arguments to distinguish existing bad law and to
help ensure
those decisions are at least limited