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A US federal judge has ruled that computer hacking legally counts as a search
Hacking someone’s computer legally counts as a search when done by law enforcement, a Texas federal judge has ruled.
The decision comes as part of the ongoing court case relating to a dark web child porn site called Playpen. As part of the investigation, the FBI covertly implanted malware known as a Network Investigative Technique – or NIT – onto the computers of anyone who visited the site.
Jeffrey Torres of San Antonio, Texas, was one of the people caught in the FBI’s cyber-sting. He filed a motion to suppress evidence seized from his home, based on the argument that the FBI’s initial search of his computer was unlawful.
Judge David Alan Ezra ultimately denied the motion, ruling that the search was covered by the FBI’s initial warrant. However, the ruling does clearly state that law enforcement hacking counts as a search under the fourth amendment of the US constitution.
“The NIT placed code on Mr. Torres’ computer without his permission, causing it to transmit his IP address and other identifying data to the government,” Ezra wrote in his ruling, stating that “this was unquestionably a ‘search’ for Fourth Amendment purposes”.
This means that US authorities must possess a valid search warrant before hacking a suspect’s computer – which marks a major win for privacy campaigners.
Legal opinion on this topic has been divided, however, and as part of a case relating to the same FBI operation, a Virginia District Judge ruled that the government needed no warrant in order to hack a defendant’s computer.
The issue has presented a tricky problem for the courts, and according to Ezra, “has brought to light the need for Congressional clarification” regarding a judge’s ability to issue warrants in cyber crime cases where the suspects may be using services like Tor to obscure their location.