Judge In Child Porn Case Says FBI Must Turn Over Details On Its Hacking Tool

from the a-new-form-of-file-sharing dept

In California, the FBI is hoping to force Apple to write a hacking tool for it so it can access the contents of an iPhone. Further up the coast in Washington, the compelling force is moving in the opposite direction. The attorney representing a man swept up during the FBI’s two-week stint as sysadmins for a child porn server has just had a motion granted that would force the agency to turn over details on the hacking tool it deployed.

A judge has ordered the FBI to reveal the complete code for its Tor exploit to defense lawyers in a child porn case. pic.twitter.com/AZ8QYgGwKe

— Brad Heath (@bradheath) February 17, 2016

The docket report Brad Heath screencapped shows a granted motion for discovery targeted at the FBI. Joseph Cox at Motherboard received confirmation from federal public defender Colin Fieman that the docket note indeed says what it appears to say.

On Wednesday, a judge ruled that defense lawyers in an FBI child pornography case must be provided with all of the code used to hack their client’s computer.

When asked whether the code would include the exploit used to bypass the security features of the Tor Browser, Colin Fieman, a federal public defender working on the case, told Motherboard in an email, simply, “Everything.”

“The declaration from our code expert was quite specific and comprehensive, and the order encompasses everything he identified,” he continued.

While the defense will likely see the code — provided the FBI can’t argue its way out of disclosing its methods — it’s highly likely the general public won’t have access to these details. The docket is littered with documents sealed at the request of the FBI. Fortunately, there are also a few motions by Michaud’s lawyer to unseal documents, so there’s still a small chance information on the FBI’s NIT (Network Investigative Technique) will make its way in the public domain. If so, it will probably be heavily-redacted, but it should still provide a small peek into the FBI’s hacking efforts.

Cox also points out that the FBI has already turned over some of its NIT code, but what the defense received was missing several key elements.

Since September, Michaud’s lawyers have been trying to get access to the NIT code. It wasn’t until January that Vlad Tsyrklevitch, the defense’s consulted expert, received the discovery.

However, according to Tsyrklevitch, the code was apparently missing several parts. One of those was the section of the code ensuring that the identifier issued to Michaud’s NIT-infection was truly unique, and another was the exploit itself used to break into his computer.

The only other new document of import in the case is a sworn declaration from Special Agent Daniel Alfin, which claims the FBI has already handed over everything it should have to.

The NIT computer instructions provided to the defense on January 11, 2016, comprise the only “payload” executed on Michaud’s computer as part of the FBI investigation resulting in his arrest and indictment in this case. Accordingly, the defense has been given access to the only “payload” as that term is used by the defense in its Third Motion to Compel, accompanying Declaration.

But the declaration also notes the FBI has more information it could “share” with the defense.

The government has advised the defense that it is willing to make available for its review the two-way network data stream showing the data sent back-and-forth between Michaud’s computer and the government-controlled computer as a result of the execution of the NIT.

It also points out that at no time did images travel from Michaud’s computer to an FBI-owned computer or vice versa. Agent Alfin also avers that once the investigation concluded, the FBI no longer had access to Michaud’s computer.

Considering the judge has already given the FBI a pass for running a child porn website for two weeks, it seems unlikely the court will find anything about the NIT to be the basis for tossing evidence. There may be some issues troubling the outer reaches of the Fourth Amendment, but courts have historically forgiven questionable law enforcement behavior that serves a “compelling public interest” — and it’s hard to find a more “compelling” interest than fighting child pornography.

Filed Under: disclosure, fbi, hacking tool, tor, tor browser