Lawyers at EFF, the ACLU, and the National Association of Criminal Defense Lawyers released a report today outlining strategies for challenging law enforcement hacking, a technique of secretly and remotely spying on computer users to gather evidence. Federal agents are increasingly using this surveillance technique, and the report will help those targeted by government malware—and importantly their attorneys—fight to keep illegally-obtained evidence out of court.
A recent change in little-known federal criminal court procedures, which was quietly pushed by the Justice Department, has enabled federal agents to use a single warrant to remotely search hundreds or thousands of computers without having to specify whose information is being captured or where they are. We expect these changes to result in much greater use of the technique, and the guide will arm attorneys with information necessary to defend their clients and ensure that law enforcement hacking complies with the Constitution and other laws.
In the largest known government hacking campaign to date, the FBI seized servers running a website accused of hosting child pornography and, instead of shutting down the site, continued to operate it. Relying on a single warrant, the FBI then hacked into users that accessed the site, totaling nearly 9,000 devices located in 120 countries around the world. The FBI charged hundreds of suspects who visited the website, several of whom are challenging the validity of the warrant. In briefs filed in these cases, EFF says that the warrant that enabled this massive hacking exercise is unconstitutional and evidence gathered using it should be suppressed.

As with every new surveillance power obtained by the government, it’s just a matter of time before these secret malware attacks are used in other cases. That’s why it’s important for criminal defense attorneys to get educated about how these attacks work and how they can vigorously defend their clients rights when the technique is used.
The report, “Challenging Government Hacking in Criminal Cases,” explains how to recognize the use of government malware in a criminal case, and it outlines the most important and potentially effective procedural and constitutional arguments to raise when hacking was used to gather evidence. Our hope is that the guide will help attorneys fight back against illegal surveillance, and ultimately place important and needed checks on the government’s ability to hack into our personal electronic devices.