
Judge: FBI Can Hack Without Warrant Because Computers Get Hacked All the Time - fooey
https://www.techdirt.com/articles/20160624/05351534808/judge-says-fbi-can-hack-computers-without-warrant-because-computer-users-get-hacked-all-time.shtml
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dmitrygr
They hacked his computer. Causing modifications to it. How can they prove
whatever they found was not planted there?

Usually computer forensics researchers, to have their evidence be admissible,
use special devices that block write access to hard drives and such. Else it
gets thrown out in court. Why is this different?

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a3n
Because some animals are more equal than others.

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na85
Indeed. Positively Orwellian.

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cbanek
Okay, so the FBI can do whatever it wants, just like anyone else. When they
get caught, they should go to jail, just like anyone else.

~~~
javajosh
Separation of powers is starting to lose it's luster. Nothing unites people
more than a common enemy, and when "we the people" start to turn against "the
government", the body of people that compose the government will tend to stick
together tighter and tighter, to defend against the threat. One way this
happens is favoritism, to give greater and greater leeway with the law to "us"
(and less and less leeway to "them").

The problem with the judicial branch is the complexity of law, which makes it
very difficult to second-guess it's outcomes. Our society has seemingly
accepted this as inevitable, but a) I don't think it is, and b) if this
complexity isn't addressed, then we will continue to suffer systematic abuse
that comes from giving bad actors so much surface area to abuse and hide
within.

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cbanek
Agree completely.

Another related problem is that both parts of the judicial system (the agents
looking for crimes, and the courts, and now also the prison/parole system) are
all in bed with each other, when they should be balancing each other out.

Coupled with the fact that three letter agencies can get away with illegal
activity themselves has really pushed over the boundaries of just government.

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javajosh
_> both parts of the judicial system (the agents looking for crimes, and the
courts, and now also the prison/parole system) are all in bed with each other,
when they should be balancing each other out._

Ha, this actually means that we should have a _self-similar_ separation of
powers. I'm not sure that's what the framer's had in mind - I suspect they
wanted the top-level powers to act coherently to balance each other out.

Partly, though, I think it's about a misunderstanding about the nature of the
"justice system". The police are, essentially, an extension of the Executive.
This is true because police are not just "reactive", they execute. In the same
way, any part of the government that "does stuff" is part of the executive.
The DMV is Executive. Only the court itself, and the judges and support staff
in the court, are Judicial. The blurred line is the "district attorney", who
is responsible both for prosecuting on behalf of the state, and defending the
state from action.

Remarkably, the Executive has acquired a truly _enormous_ amount of special
treatment under the law. First, because the law itself exempts Executive
workers from a wide variety of the law, and second because of the way the
system works, the way Justice moves cases toward conclusion, which is filled
with conflicts of interest that erode the separation between Justice and
Executive, specifically within local law enforcement.

Frankly, I really love the idea of self-similar separation of powers, even at
the local level, where there is an _adversarial_ tone between the Justice,
Executive, and Legislative branches! Justice should be incentivised to dig up
dirt on the Executive; the Executive should pride itself on knowing (and
following) the law exactly (not "getting the bad guys"). The Legislative, in
the end, should work to maintain rules that are simple, easy to understand,
and which above all, maintain the adversarial relationship between powers at
every level, federal, state, and local.

This is also a good, strong foundation to discuss secrecy in government action
- which is Executive action. What has happened with the introduction of the
secret courts is the spreading of the secrecy between powers. This should be
rejected for weakening the separation of powers, but also undermining the root
of strength for each branch: validation by the people's opinion. The people
cannot have an informed opinion if they do not know what their government is
doing. (As a practical matter, this is non-trivial. The "Government's
Understanding" of the world drives operations, which are often handed off to a
team specializing in "doing stuff". So you have a large sea of (presumably
fairly competent) analysts and operations staff working thousands, if not
millions, of projects in every field in which the government interacts, which
is essentially every field. It helps to start dividing the behavior into
categories, which may or may not match up well with the USG org chart.)

Sigh. Maybe complexity itself limits the size of a legitimate democracy,
because how can we be good citizens without understanding fully the doings of
our government, and how can we know that even without secrecy in place?

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s_tec
If a security researcher finds and reports a flaw in a system, they can get in
trouble for unauthorized access. This is dumb, since we _want_ flaws to be
disclosed so they can be fixed. In a certain sense, systems that can be
accessed, should be accessed.

The real problem isn't unauthorized access; it's what someone does with that
access. Someone who gains access to information but does nothing with it
hasn't really done anything wrong. The law should apply only when that access
is used for harm (vandalism, corporate espionage, fraud, or whatever is
relevant). Right now, the law penalizes the access itself, which is backwards.

If we apply this logic to the FBI, then sure, let them hack away. Without the
due process of a warrant, however, none of the stolen information should be
admissible in court. The problem isn't the hacking; it's making inappropriate
use of stolen information.

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aggie
Unfortunately, the inadmissibility of evidence due to being obtained without
warrant seems to be eroding: [http://www.nytimes.com/2016/06/21/us/supreme-
court-says-poli...](http://www.nytimes.com/2016/06/21/us/supreme-court-says-
police-may-use-evidence-found-after-illegal-stops.html)

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corysama
This seems to be a running theme.

"Technically, we are required to get a warrant to peek anywhere you have a
reasonable expectation of privacy. But, you should know by now that we are
everywhere. Therefore, you should never reasonably expect privacy. Therefore,
we don't need a warrant."

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sajan80
But the computer hacking is illegal even if it's done all the time. That's
like saying that the FBI can pirate any movie it wants because piracy happens
all the time.

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sharemywin
So they can break into your house because it happens all the time.

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r00fus
Let's take it further - they can kill you because murder happens all the time.

The fallacy is strong with their reasoning...

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dllthomas
Prohibitions on murder aren't predicated on an expectation of not being
murdered. Entirely different dynamic.

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cmdrfred
Does the FBI have special powers that allow it to violate habeas corpus? No?
So this ruling then means to me, "Anyone Can Hack Without Warrant Because
Computers Get Hacked All the Time". Let's begin everyone.

nmap fbi.gov

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RIMR
More like:

nmap -p 1-65535 -T4 -A -v 153.31.0.0/16

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fapjacks
I would go even slower. Take your time. You have all night.

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cmdrfred
These are government contractors, you guys are working too hard.

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StanislavPetrov
Unfortunately this decision is yet another reminder of how horribly our system
of laws has broken down. The Constitutional rights of every American are
trampled on by the government every day, aided and abetted by the courts,
while the rich and powerful routinely ignore the law with impunity. Very
apropos that the very embodiment of corruption, Hillary Clinton, is poised to
take over leadership of this country.

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TallGuyShort
Went through a fun exercise yesterday: walked through all the amendments to
the Constitution (especially the Bill of Rights) and discussed how many of
them are essentially moot now because of all the exceptions that have already
been made over the years. Surprisingly few are still absolute rights.

~~~
mtanski
You mean the second amendment? Because that one has been expanded in its
interpretation. They skipped the whole part about "well regulated"

~~~
TallGuyShort
The well-regulated militia is in a separate clause. I interpret that to being
the explanation for the actual statement, "the right to keep and bear arms
shall not be infringed."

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alexandercrohde
Wow, this is the technical equivalent of "The FBI can pick the lock on your
door and search your house without a warrant, because houses get broken into
all the time"

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coroutines
The FBI seems like the least careful of all the agencies penetrating
computers. NSA > Secret Service > CIA > FBI

They're either messing up an investigation or destroying their public image.

1) Accidentally resetting the Bernadino terrorist's iCloud password

2) Withdrawing its demands from Apple after significant backlash

3) Asking for the ability to inspect browser history without a warrant

4) Modifying the computers they're "lawfully" allowed to breach - can we trust
this evidence in court?

Wouldn't trust them with more authority that's for sure.

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woodman
0) Carnivore.

I imagine the NSA would have preferred that to have not happened. To
anthropomorphize the FBI: it is like an officer of Planned Parenthood who
frequently goes off message, talking about head measurements and quoting
Margaret Sanger.

[https://en.wikipedia.org/wiki/Carnivore_(software)](https://en.wikipedia.org/wiki/Carnivore_\(software\))

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Esau
With this train of thought, then they shouldn't need a warrant to search your
house because homes get broken into all the time.

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guard-of-terra
One day those people will be old and vulnerable and frankly I don't understand
what they're counting on by pissing us like this.

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brazzledazzle
Probably because they'll be dead before young people age into a group large
enough to do anything about it.

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ZoeZoeBee
Millenials officially became the largest living generation this year, all are
over 18

~~~
brazzledazzle
Right, but they still need to vote as a somewhat cohesive group.

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ZoeZoeBee
This like saying law enforcement can break into your home and do whatever
they'd like without a warrant, because burglaries happen all the time

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escape_goat
I am not a lawyer, and my understanding of what I have read is constrained by
the relative inexperience I bring to it. However, I would encourage anyone who
felt strongly about this matter to read through the reasoning of the actual
decision [1], rather than relying upon the characterization presented by the
tech dirt article. The techdirt article somehow manages to fail to see an
entire forest due to the presence of a singular tree. The judge in this
instance presents a laundry list of overlapping of reasons for denying the
defendant's motion.

The truth is that the FBI investigators did _not_ "hack without a warrant" in
this instance, let alone without probable cause _in the specific case of this
defendant_ , and by the presented evidence appears to have given ample
diligence to observing that the triggering conditions of the warrant were
applicable.

The defence is advancing a theory that has the transmission of the defendant's
IP over HTTP rather than HTTPS as a central complaint, plus the possibility
that the FBI malware could have been insecure so as allow a malicious third
party to falsely implicate to defendant.

It is on this basis that they feel the source code of the malware should be
entered into evidence. It is the opinion of the judge that the defence has
failed to establish any basis under which he might be convinced that the facts
"sufficiently advanced the quantum of evidence" (whatever that is, really) so
that a examination of a theory advanced by the defence warrants treatment as a
possibility rather than a speculative hypothesis. He reiterates many times
that the defence has made no attempt to perform a forensic investigation of
the defendant's computer or establish any reason external to speculation that
might give credence to their theory. This appears to be a basic standard of
admissibility.

This is the context in which the judge brings up the theory that there is not
a reasonable expectation to privacy adherent to the use of an IP address,
which I find to be completely amazing. I do not understand how he comes by
that belief. But to say that the judge has "ruled" this to be the case, as the
tech dirt article does, might put you at risk of asserting a fallacious belief
that appeared to be factually ignorant.

I do not know if this assertion on the judge's part grants a greater legal
factuality to the argument, absent as it may be, were it to be later cited by
others. I hope not. However, I can say that the ruling that the judge has made
by no means comes anywhere close to relying upon the truth of this in arriving
at his decision to reject the motion of the defendant. He is not simply
reporting sufficient reason to rule against the defendant's request; instead,
it seems he has felt inspired to list every single way in which every aspect
of the reasoning they present to justify such a motion is (in his view)
thoroughly and utterly without merit.

[1] [https://assets.documentcloud.org/documents/2897490/Matish-
Or...](https://assets.documentcloud.org/documents/2897490/Matish-Order.pdf)

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anonbanker
I'll wait until SCOTUS upholds this before I get too worried.

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meat_fist
FBI can rob you at gunpoint because people get robbed at gunpoint all the
time.

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lowbloodsugar
They aren't robbing you. They are seizing property that they found and which
you are making wild claims of ownership based on the idea that it was in a
backpack on your back.

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tracker1
It's not a criminal matter.. it's "civil" asset forfeiture... although if you
resist, it is a criminal matter. :-/

