Just Security: With Remote Hacking, the Government’s Particularity Problem Isn’t Going Away

Just Security: With Remote Hacking, the Government’s Particularity Problem Isn’t Going Away by Andrew Crocker:

Electronic surveillance succeeds because it is secret. When the government seeks to record “what is whispered in the closet,” in the words of Justice Brandeis, it must use clandestine methods. Since at least 1928, when Brandeis wrote his United States v. Olmstead dissent, it has been understood that unseen surveillance also provides a “subtler and more far-reaching means of invasion of privacy” than physical searches. Recognition of this dual nature — effective but invasive — has driven evolution of the law. From Berger v. New York, United States v. Katz, and the Keith case, to recent decisions like United States v. Jones, the Supreme Court has emphasized the need to control electronic surveillance, cabining executive discretion and requiring a highly particularized showing of what will be searched or seized before a warrant is issued. Congress has in turn responded with laws like Title III, ECPA, and FISA.

Even so, Brandeis made an easy bet when he predicted that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping.” As Ahmed Ghappour explained in 2014, the state of the government’s art is now hacking: “remote access of a computer to install malicious software without the knowledge or permission of the owner/operator.” In the computer security field, this sort of malware is often called a RAT, for Remote Access Tool, but the FBI and DOJ refer to it as a NIT, for Network Investigative Technique. The FBI has used NITs and similar malware for more than 15 years, but it is only now that a significant number of criminal cases involving government hacking techniques are being litigated. Just as with wiretapping, we should be mindful of the need for both constitutional and statutory law to keep up with the use of hacking for surveillance.