7 ms·

If the exploit is classified, how can it be verified that the exploit actually extracted the evidence claimed? That is, how can the FBI prove that it did not ob

If the exploit is classified, how can it be verified that the exploit actually extracted the evidence claimed? That is, how can the FBI prove that it did not obtain the evidence by other, illegal means (as they have instructed other agencies to do)? Provenance of evidence is everything in criminal cases.

x5n1 10y ago
Because the FBI wouldn't lie about stuff like this. And parallel reconstruction does not exist. I meant honestly, if there were any real hard rules, other than do whatever you can get away with, much if not all criminal case evidence would be highly suspect, demanding at the least a retrial.
- Allower 10y ago
  >Because the FBI wouldn't lie about stuff like this This is sarcasm right? Otherwise you are an idiot
- jonathankoren 10y ago
  https://en.wikipedia.org/wiki/Poe%27s_law https://en.wikipedia.org/wiki/Poe%27s_law
IgorPartola 10y ago
"I just know he's guilty, your honor. I just know it in my heart of hurts. Just trust me on this, OK? Just, like, trust me. I mean I am here busting my balls working 14 hour days keeping our people safe, your honor, and I just really need a win right now. So can you just, like, find him guilty? Like, I've never asked you for any personal favors. And I totally have the evidence, but who needs that. I mean I just not it, just by looking into his eyes. Look at him, doesn't he just look guilty to you, your honor?"
- tropo 10y ago
  The obvious solution is to have a court that can handle classified material.
  - JoshTriplett 10y ago
    The defendant has a legal right to be present, and to see all the evidence presented against them, even if they're neither allowed to receive "classified" information nor bound to not disclose it. So no, classified evidence is not evidence. If you can't make a case against someone without classified information, decide which you care more about: the classification of the information, or the conviction.
    - tropo 10y ago
      There would be lawyers with security clearances, and the defendant would usually have to rely on his lawyer. It's not perfect, but it balances the conflicting needs better than any alternative I've ever seen. Note that this isn't 1-sided in favor of the government. Consider what happens today. People working at Area 51 tried to sue over being exposed to toxins, but were stopped by the state secrets privilege. That privilege would die if we had classified courts.
    - kabdib 10y ago
      Can the defendant insist on a jury trial if some of the evidence is classified? What happens then?
      - burfog 10y ago
        There really shouldn't be any trouble finding people with security clearances to be on the jury. If anything, this is a far superior "jury of peers". It's people who do the same sort of work.
        JoshTriplett 10y ago
        > It's people who do the same sort of work. Exactly the problem. "People with security clearances" seems like a set of people more likely on average to favor the government point of view, to the point that a defense attorney that allowed twelve people with security clearances to form a jury has utterly failed at voir dire.
serge2k 10y ago
Closed binary demonstrates they can pull data.
- fweespeech 10y ago
  It doesn't verify the data is accurate and correct at the time of collection. Without that evidence is literally worthless.
  - Consultant32452 10y ago
    How is this concern different for any form of evidence? At some point you're trusting that a person collected evidence in the way they claim to have collected it. To help me understand, could you make an analogy for a drug bust? Theoretically an officer could plant drugs on you. And that does happen from time to time, but we don't just ignore all evidence because that might have happened.
    - AnthonyMouse 10y ago
      The difference between a lie and "that's classified" is that you can disprove a lie.
      - Consultant32452 10y ago
        You can disprove the claims made from classified sources. "A classified source said you bought 50 kilos of cocaine. We searched your house and found 50 kilos of cocaine." You're still going to jail. If no cocaine turns up, then you should be in the clear.
        AnthonyMouse 10y ago
        The claim you're going to want to challenge there isn't the existence of the cocaine, it's the existence of probable cause to search your house for it. Yes, the exclusionary rule means the bad guys win when the good guys can't prove they followed the rules. That's how the exclusionary rule gets the good guys to follow the rules.
tptacek 10y ago
You can say pretty much the same thing about all electronic evidence. Ultimately it comes down to people involved in the chain of custody for the evidence signing affidavits, whether the evidence is an exploit or a simple log file.
- saosebastiao 10y ago
  Except the chain of custody involved easily MITM-able unencrypted data: http://motherboard.vice.com/read/fbi-our-malware-sends-unencrypted-evidence-and-thats-a-good-thing http://motherboard.vice.com/read/fbi-our-malware-sends-unenc...
  - tptacek 10y ago
    Again not sure how arguments like that don't apply to most collected electronic evidence. Defendants can raise that argument in court; evidence is routinely disputed.
- EdHominem 10y ago
  There's a huge difference between the chain of custody and the methods used to extract information. If I'm allowed to use a classified system to extract information (say from an encrypted drive) I could really just be creating that information instead. The defendant can't or won't decrypt the drive so they can't dispute the claim.
  - tptacek 10y ago
    I guess I don't understand how this isn't trivially true of the simplest log file introduced into evidence.
    - EdHominem 10y ago
      Log files are cleartext. We can both see what it says on day 1 and that won't change. But if there's a classified evidence-gathering program it can be upgraded to "find" whatever they want at any date.
rotrux 10y ago
but it's not everything in situations outside the rule-of-law. Just because something isn't legally provable doesn't make it false. I suppose the existence of the exploit could be a very VERY elaborate set of smoke and mirrors, but I doubt it. DC shoots from the hip just like everyone else. "never attribute to malice that which can be attributed to incompetence." -Some Smart Guy IDK...Google it.
gozur88 10y ago
The FBI has two different, and sometimes opposed, missions. The primary mission is security - it's supposed to stop terrorists from terrorizing, spies from spying, saboteurs from... well, whatever. After-the-fact law enforcement is secondary. It may be this is a tool they intend to use to attack spy and terrorist networks where breaking up the network is more important than getting prosecutions.
- pdkl95 10y ago
  The FBI dropped law enforcement from their mission statement several years ago, and now considers their mission to be intelligence work only.
  - dragonwriter 10y ago
    > The FBI dropped law enforcement from their mission statement several years ago, and now considers their mission to be intelligence work only. That's an interesting claim, but utterly untrue: "The mission of the FBI is to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners; and to perform these responsibilities in a manner that is responsive to the needs of the public and is faithful to the Constitution of the United States." https://www.justice.gov/jmd/organization-mission-and-functions-manual-federal-bureau-investigation https://www.justice.gov/jmd/organization-mission-and-functio...
- hackuser 10y ago
  > The primary mission is security ... After-the-fact law enforcement is secondary. I'm not sure that's true. Where do you get that?
  - deleted 10y ago
    [deleted]
  - gozur88 10y ago
    https://www.fbi.gov/about-us/quick-facts https://www.fbi.gov/about-us/quick-facts

x5n1 10y ago

Because the FBI wouldn't lie about stuff like this. And parallel reconstruction does not exist. I meant honestly, if there were any real hard rules, other than do whatever you can get away with, much if not all criminal case evidence would be highly suspect, demanding at the least a retrial.

Allower 10y ago
>Because the FBI wouldn't lie about stuff like this This is sarcasm right? Otherwise you are an idiot
jonathankoren 10y ago
https://en.wikipedia.org/wiki/Poe%27s_law https://en.wikipedia.org/wiki/Poe%27s_law

IgorPartola 10y ago

"I just know he's guilty, your honor. I just know it in my heart of hurts. Just trust me on this, OK? Just, like, trust me. I mean I am here busting my balls working 14 hour days keeping our people safe, your honor, and I just really need a win right now. So can you just, like, find him guilty? Like, I've never asked you for any personal favors. And I totally have the evidence, but who needs that. I mean I just not it, just by looking into his eyes. Look at him, doesn't he just look guilty to you, your honor?"

tropo 10y ago
The obvious solution is to have a court that can handle classified material.
- JoshTriplett 10y ago
  The defendant has a legal right to be present, and to see all the evidence presented against them, even if they're neither allowed to receive "classified" information nor bound to not disclose it. So no, classified evidence is not evidence. If you can't make a case against someone without classified information, decide which you care more about: the classification of the information, or the conviction.
  - tropo 10y ago
    There would be lawyers with security clearances, and the defendant would usually have to rely on his lawyer. It's not perfect, but it balances the conflicting needs better than any alternative I've ever seen. Note that this isn't 1-sided in favor of the government. Consider what happens today. People working at Area 51 tried to sue over being exposed to toxins, but were stopped by the state secrets privilege. That privilege would die if we had classified courts.
  - kabdib 10y ago
    Can the defendant insist on a jury trial if some of the evidence is classified? What happens then?
    - burfog 10y ago
      There really shouldn't be any trouble finding people with security clearances to be on the jury. If anything, this is a far superior "jury of peers". It's people who do the same sort of work.
      - JoshTriplett 10y ago
        > It's people who do the same sort of work. Exactly the problem. "People with security clearances" seems like a set of people more likely on average to favor the government point of view, to the point that a defense attorney that allowed twelve people with security clearances to form a jury has utterly failed at voir dire.

serge2k 10y ago

Closed binary demonstrates they can pull data.

fweespeech 10y ago
It doesn't verify the data is accurate and correct at the time of collection. Without that evidence is literally worthless.
- Consultant32452 10y ago
  How is this concern different for any form of evidence? At some point you're trusting that a person collected evidence in the way they claim to have collected it. To help me understand, could you make an analogy for a drug bust? Theoretically an officer could plant drugs on you. And that does happen from time to time, but we don't just ignore all evidence because that might have happened.
  - AnthonyMouse 10y ago
    The difference between a lie and "that's classified" is that you can disprove a lie.
    - Consultant32452 10y ago
      You can disprove the claims made from classified sources. "A classified source said you bought 50 kilos of cocaine. We searched your house and found 50 kilos of cocaine." You're still going to jail. If no cocaine turns up, then you should be in the clear.
      - AnthonyMouse 10y ago
        The claim you're going to want to challenge there isn't the existence of the cocaine, it's the existence of probable cause to search your house for it. Yes, the exclusionary rule means the bad guys win when the good guys can't prove they followed the rules. That's how the exclusionary rule gets the good guys to follow the rules.

tptacek 10y ago

You can say pretty much the same thing about all electronic evidence. Ultimately it comes down to people involved in the chain of custody for the evidence signing affidavits, whether the evidence is an exploit or a simple log file.

saosebastiao 10y ago
Except the chain of custody involved easily MITM-able unencrypted data: http://motherboard.vice.com/read/fbi-our-malware-sends-unencrypted-evidence-and-thats-a-good-thing http://motherboard.vice.com/read/fbi-our-malware-sends-unenc...
- tptacek 10y ago
  Again not sure how arguments like that don't apply to most collected electronic evidence. Defendants can raise that argument in court; evidence is routinely disputed.
EdHominem 10y ago
There's a huge difference between the chain of custody and the methods used to extract information. If I'm allowed to use a classified system to extract information (say from an encrypted drive) I could really just be creating that information instead. The defendant can't or won't decrypt the drive so they can't dispute the claim.
- tptacek 10y ago
  I guess I don't understand how this isn't trivially true of the simplest log file introduced into evidence.
  - EdHominem 10y ago
    Log files are cleartext. We can both see what it says on day 1 and that won't change. But if there's a classified evidence-gathering program it can be upgraded to "find" whatever they want at any date.

rotrux 10y ago

but it's not everything in situations outside the rule-of-law. Just because something isn't legally provable doesn't make it false. I suppose the existence of the exploit could be a very VERY elaborate set of smoke and mirrors, but I doubt it. DC shoots from the hip just like everyone else. "never attribute to malice that which can be attributed to incompetence." -Some Smart Guy IDK...Google it.

gozur88 10y ago

The FBI has two different, and sometimes opposed, missions. The primary mission is security - it's supposed to stop terrorists from terrorizing, spies from spying, saboteurs from... well, whatever. After-the-fact law enforcement is secondary. It may be this is a tool they intend to use to attack spy and terrorist networks where breaking up the network is more important than getting prosecutions.

pdkl95 10y ago
The FBI dropped law enforcement from their mission statement several years ago, and now considers their mission to be intelligence work only.
- dragonwriter 10y ago
  > The FBI dropped law enforcement from their mission statement several years ago, and now considers their mission to be intelligence work only. That's an interesting claim, but utterly untrue: "The mission of the FBI is to protect and defend the United States against terrorist and foreign intelligence threats, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal, and international agencies and partners; and to perform these responsibilities in a manner that is responsive to the needs of the public and is faithful to the Constitution of the United States." https://www.justice.gov/jmd/organization-mission-and-functions-manual-federal-bureau-investigation https://www.justice.gov/jmd/organization-mission-and-functio...
hackuser 10y ago
> The primary mission is security ... After-the-fact law enforcement is secondary. I'm not sure that's true. Where do you get that?
- deleted 10y ago
  [deleted]
- gozur88 10y ago
  https://www.fbi.gov/about-us/quick-facts https://www.fbi.gov/about-us/quick-facts