March 30, 2017

NEW YORK — A report released today sets out key legal arguments and strategies for challenging evidence seized by government-installed computer malware as a violation of the Fourth Amendment and federal law.

The report, “Challenging Government Hacking in Criminal Cases,” was written by attorneys from the American Civil Liberties Union, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers.

Over the past several years, the government has increasingly turned to hacking and malware as an investigative technique. The Federal Bureau of Investigation has begun deploying software designed to infiltrate and control, disable, or surveil a computer’s use and activity. This kind of widespread and secretive hacking by the government is controversial and of questionable constitutionality.

“Our goal is to ensure that the government’s uses of malware don’t violate the Fourth Amendment. That means that hacking always requires a warrant based on individual suspicion,” said ACLU attorney Vera Eidelman, one of the authors of the report.

The report assesses recent court decisions evaluating the government’s use of the controversial hacking technique and makes recommendations for the most promising avenues to have unconstitutionally obtained evidence suppressed. “Our Fourth Amendment right to be free from unreasonable searches applies regardless of the technology involved in a search,” said EFF attorney Mark Rumold. “However, we know that the law may be slow to catch up, particularly when the government goes to great lengths to hide details about its use of new surveillance techniques.”

A key audience for the report is the nation’s network of criminal defense lawyers, who will be the first to learn of court evidence obtained from government hacking operations.

“We’re proud to release this report to ensure the defense community is educated about these highly intrusive surveillance techniques and is fully armed for a zealous defense against potentially unlawful hacking,” said Jumana Musa of the NACDL.

The report is at: https://www.aclu.org/malware-report

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