{"id":22418,"date":"2016-06-02T09:25:25","date_gmt":"2016-06-02T14:25:25","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=22418"},"modified":"2016-06-02T09:25:25","modified_gmt":"2016-06-02T14:25:25","slug":"just-security-with-remote-hacking-the-governments-particularity-problem-isnt-going-away","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=22418","title":{"rendered":"Just Security: With Remote Hacking, the Government\u2019s Particularity Problem Isn\u2019t Going Away"},"content":{"rendered":"<p>Just Security: <a href=\"https:\/\/www.justsecurity.org\/31365\/remote-hacking-governments-particularity-problem-isnt\/\">With Remote Hacking, the Government\u2019s Particularity Problem Isn\u2019t Going Away<\/a> by Andrew Crocker:<br \/>\n<!--more--><\/p>\n<blockquote><p>Electronic surveillance succeeds because it is secret. When the government seeks to record \u201cwhat is whispered in the closet,\u201d 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 \u201csubtler and more far-reaching means of invasion of privacy\u201d than physical searches. Recognition of this dual nature \u2014 effective but invasive \u2014 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.<\/p>\n<p>Even so, Brandeis made an easy bet when he predicted that \u201c[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping.\u201d As Ahmed Ghappour explained in 2014, the state of the government\u2019s art is now hacking: \u201cremote access of a computer to install malicious software without the knowledge or permission of the owner\/operator.\u201d 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. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>Just Security: With Remote Hacking, the Government\u2019s Particularity Problem Isn\u2019t Going Away by Andrew Crocker:<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[15,31],"tags":[],"class_list":["post-22418","post","type-post","status-publish","format-standard","hentry","category-f-r-crim-p-41","category-fisa"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22418","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=22418"}],"version-history":[{"count":1,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22418\/revisions"}],"predecessor-version":[{"id":22419,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/22418\/revisions\/22419"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=22418"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=22418"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=22418"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}