Challenging Government Hacking in Criminal Cases

Document Date: March 30, 2017

This report sets out key legal arguments and strategies for defense attorneys to challenge evidence seized by government-installed computer malware as a violation of the Fourth Amendment and federal law.

Over the past several years, the government has increasingly turned to hacking and malware as an investigative technique. The FBI 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.

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.

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