Short Bytes: Due to their poor understanding of technology, the US courts have failed to agree on whether FBI’s recent hacking activities broke the law. While previous courts argued that using a malware (FBI’s NIT) doesn’t need a warrant as it isn’t a “search”, a federal judge in Texas has now ruled that it’s “unquestionably a “search” for Fourth Amendment purposes.”
This FBI campaign involved hacking of thousands of computers using a malware called Network Investigative Technique (NIT). Some courts have ruled that such hacking doesn’t involve a ‘search’, therefore it doesn’t need a warrant.
However, in a recent development, a federal judge in Texas ruled that sending a malware to someone’s computer to gain information is a ‘search’ under the Fourth Amendment.
The judge ruled that FBI’s NIT infected Mr. Torres’ computer without his permission and stole his IP address and other personal information. “That Mr. Torres did not have a reasonable expectation of privacy in his IP address is of no import. This was unquestionably a “search” for Fourth Amendment purposes,” the judge ruled.
This judgement looks like an improvement. In the past, many US courts have issued absurd rulings. Earlier this year in February, a federal judge in Washington state issued an opinion suggesting that a user shouldn’t expect privacy while using TOR.
While the latest judgement acknowledges a user’s privacy to some extent, it denies the defendant’s motion to reject the evidence gathered using NIT, according to Motherboard. It’s because it can’t be proven that the FBI willfully broke Rule 41(b), a rule that prevents judges from issuing search orders outside their districts. In a recent move, the FBI is trying hard to make amendments to the Rule 41 to expand its hacking powers.
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