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As I posted on the other thread about this news, the interpretation that this gives the government "new hacking powers" is just flat-out wrong, and shame on the

by tomku 10y ago

As I posted on the other thread about this news, the interpretation that this gives the government "new hacking powers" is just flat-out wrong, and shame on the EFF for using it to spread FUD. The ONLY thing changed by this proposed rule is the venue in which the government can apply for warrants, expanding it to include any jurisdiction involved in the crime under those two specific circumstances that the EFF blog post mentions. It does NOT change any of the rules of probable cause involved in getting a warrant. It does NOT grant any kind of "new hacking powers". It does NOT criminalize Tor or allow law enforcement to get a warrant simply because someone used Tor. There are reasons to not like this rule change based on what it actually means. Misrepresenting things that you don't agree with ultimately hurts your own side because it makes it trivial for people on the other side to dismiss your complaints as ignorant and wrong.

mtgx 10y ago
Leaving aside the "new hacking powers" thing, I still see two problems with this: 1) the FBI can go the same friendly judge over and over again for all hacking requests. We've seen this kind of problem before like with the DEA going to the same judge tens of thousands of times for what other judges considered illegal wiretapping. So at the very least, if this passes, we'll need to somehow improve the oversight on judges much more than how it currently works. 2) it allows the FBI to hack people from outside of the country as well, even without permission from other countries to do so, which can cause all sorts of problems on its own. I believe Russia sued the FBI for doing something similar about a decade ago.
- nxzero 10y ago
  If the US is able hack other countries computers, then they shouldn't complain when their computers get jacked, which then calls into question why this law is needed. In all seriousness, not a stretch to believe a war might start due to somethings like this.
- rayiner 10y ago
  Re: 2, the FBI already has the authority to engage in world-wide hacking from Congress. Rule 41 applies to warrants, which are Constitutionally unnecessary for foreign targets.
- tomku 10y ago
  1) This is only partially accurate - it expands the venues for warrant applications, but it doesn't do it willy-nilly. The government would be allowed to "shop" for judges inside of the set of jurisdictions where illegal activity allegedly took place. Obviously if you're conspiracy-minded you could claim that the government will claim that every hacking attempt includes a target in Nowhere City, Wyoming where a judge that's particularly enthusiastic about remote searches is, but that's something that could actually be challenged at trial. I share your concern about being able to find a "lowest common denominator" judge though, even if it's not across the entire country. 2) This rule doesn't really change the legality of the FBI hacking foreign PCs, something that I don't personally support either. It makes it easier to get warrants that might result in foreign searches, but as you note, just because a warrant is legal in the US doesn't mean that another country will smile and say "Oh, it's fine". This is one of the reasons I don't like "remote searches" in general.
  - esbranson 10y ago
    > that's something that could actually be challenged at trial How so? How is a judicial order challengable because the judge is in Wyoming? Or are you saying that the defense is going to bring a mind reader to testify about the motives of the government?
    - azernik 10y ago
      When you're at trial, you claim the search warrant is invalid because the judge lacked jurisdiction, and try to get all the evidence obtained through that warrant thrown out. It has NOTHING to do with motive - if the warrant is improperly obtained it doesn't matter what the motive of the government was. See e.g. http://www.socalcriminallawyer.com/challenging-the-validity-of-a-search-warrant-california/ http://www.socalcriminallawyer.com/challenging-the-validity-...

by tomku 10y ago

mtgx 10y ago

Leaving aside the "new hacking powers" thing, I still see two problems with this: 1) the FBI can go the same friendly judge over and over again for all hacking requests. We've seen this kind of problem before like with the DEA going to the same judge tens of thousands of times for what other judges considered illegal wiretapping. So at the very least, if this passes, we'll need to somehow improve the oversight on judges much more than how it currently works. 2) it allows the FBI to hack people from outside of the country as well, even without permission from other countries to do so, which can cause all sorts of problems on its own. I believe Russia sued the FBI for doing something similar about a decade ago.

nxzero 10y ago
If the US is able hack other countries computers, then they shouldn't complain when their computers get jacked, which then calls into question why this law is needed. In all seriousness, not a stretch to believe a war might start due to somethings like this.
rayiner 10y ago
Re: 2, the FBI already has the authority to engage in world-wide hacking from Congress. Rule 41 applies to warrants, which are Constitutionally unnecessary for foreign targets.
tomku 10y ago
1) This is only partially accurate - it expands the venues for warrant applications, but it doesn't do it willy-nilly. The government would be allowed to "shop" for judges inside of the set of jurisdictions where illegal activity allegedly took place. Obviously if you're conspiracy-minded you could claim that the government will claim that every hacking attempt includes a target in Nowhere City, Wyoming where a judge that's particularly enthusiastic about remote searches is, but that's something that could actually be challenged at trial. I share your concern about being able to find a "lowest common denominator" judge though, even if it's not across the entire country. 2) This rule doesn't really change the legality of the FBI hacking foreign PCs, something that I don't personally support either. It makes it easier to get warrants that might result in foreign searches, but as you note, just because a warrant is legal in the US doesn't mean that another country will smile and say "Oh, it's fine". This is one of the reasons I don't like "remote searches" in general.
- esbranson 10y ago
  > that's something that could actually be challenged at trial How so? How is a judicial order challengable because the judge is in Wyoming? Or are you saying that the defense is going to bring a mind reader to testify about the motives of the government?
  - azernik 10y ago
    When you're at trial, you claim the search warrant is invalid because the judge lacked jurisdiction, and try to get all the evidence obtained through that warrant thrown out. It has NOTHING to do with motive - if the warrant is improperly obtained it doesn't matter what the motive of the government was. See e.g. http://www.socalcriminallawyer.com/challenging-the-validity-of-a-search-warrant-california/ http://www.socalcriminallawyer.com/challenging-the-validity-...