Judge Says The FBI Can Keep Its Hacking Tool Secret, But Not The Evidence Obtained With It

from the hope-the-feds-enjoy-their-victory-over-transparency dept

Judge Robert Bryan -- having set his own house against itself by declaring the FBI could keep its NIT info secret while simultaneously declaring the defendant in the child porn case had every right to see it -- has managed to find a way out of his self-induced conundrum. And it's going to make the FBI very sad. (h/t Ars Technica)

For the reasons stated orally on the record, evidence of the N.I.T., the search warrant issued based on the N.I.T., and the fruits of that warrant should be excluded and should not be offered in evidence at trial.

Well, not quite.

Michaud hasn't had the case against him dismissed, but the government will now have to rely on evidence it didn't gain access to by using its illegal search. And there can't be much of that, considering the FBI had no idea who Michaud was or where he resided until after the malware-that-isn't-malware had stripped away Tor's protections and revealed his IP address.

The FBI really can't blame anyone but itself for this outcome. Judge Bryan may have agreed that the FBI had good reason to keep its technique secret, but there was nothing preventing the FBI from voluntarily turning over details on its hacking tool to Michaud. But it chose not to, despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.

Judge Bryan found the FBI's ex parte arguments persuasive and declared the agency could keep the info out of Michaud's hands. But doing so meant the judicial playing field was no longer level, as he acknowledged in his written ruling. Fortunately, the court has decided it's not going to allow the government to have its secrecy cake and eat it, too. If it wants to deploy exploits with minimal judicial oversight, then it has to realize it can't successfully counter suppression requests with vows of silence.

It's doubtful the FBI will learn from this experience. It did the same thing in 2012 and received nothing but deference from the courts. This time around, courts and lawyers are better educated, thanks to Snowden's leaks and a few hundred FOIA warriors -- all of whom have served to expose the massive, secret expansion of the government's surveillance reach and the near-complete dearth of effective oversight.

The FBI will be pushing hard for the adoption of the proposed Rule 41 changes. If these had been in place, every illegal search it performed using its NIT and the invalid warrant it obtained would have been legal. As it stands now, however, multiple courts have examined the warrant and the hacking tool and found the FBI's actions to be in violation of current statutes. What should have been slam-dunk prosecutions against unsympathetic defendants have instead become multiple participants in an ongoing debacle.


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  • icon
    Jigsy (profile), 27 May 2016 @ 3:42am

    Sorry, but without knowing how it works, it doesn't dismiss the fact that the FBI could have faked the evidence.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2016 @ 5:05am

      Re:

      No, it makes it completely true that the FBI createde evidence whole-cloth. That is, it is fabricated until the method has been tested and verified to collect the evidence correctly.

      Anything else is terrorism directly aimed at a democratic nation's citizens.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 May 2016 @ 5:57am

        Re: Re:

        I would go with the belief most of the US government is based on state sponsored terrorism to keep themselves in power for the last several decades.

        reply to this | link to this | view in chronology ]

  • identicon
    Yes, I know I'm commenting anonymously, 27 May 2016 @ 3:55am

    The other side from metadata?

    If researchers now get access to the data from the secret hacking tool, would there be enough to work back and find out how it works? (As a sort of reverse side from the metadata-is-not-personal argument.)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2016 @ 4:50am

    least justice is partially working in this case, instead of the usual railroading the defendant.

    reply to this | link to this | view in chronology ]

  • identicon
    Eponymous Commenter, 27 May 2016 @ 5:12am

    two different issues here

    Tim generally gets this stuff right - but this article confuses the Rule 41 controversy (which is a 4th amendment issue; whether the search warrant was valid) with divulging the NIT code, which is a 6th amendment issue (confronting your accuser). Judge Bryan narrowly ruled in favor of the FBI on the Rule 41 bit. Only 2 or 3 judges have found the warrant's defects justified suppression (so far.)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2016 @ 6:48am

      Re: two different issues here

      Sure, the judge ruled in the FBI's favor on Rule 41. But we haven't heard from the judge yet on Rule 34...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2016 @ 5:32am

    Uh, what's with the gif? I am supposed to be reading a Serious Website discussing Serious Issues and anyone glancing at my screen will think I'm not actually doing work-work, ya know? Plus it looks like Internet 0.1 alpha pre-release with blinking flashing html and only missing a scrolling banner. I may have to reconsider my membership in this formerly tasteful, genteel and refined establishment.

    reply to this | link to this | view in chronology ]

  • icon
    kenichi tanaka (profile), 27 May 2016 @ 6:36am

    I expected this kind of decision simply because the courts aren't going to allow law enforcement to violate the spirit of "due process". This is the cornerstone of our law, where it concerns charging suspects with crimes and the courts are mostly reluctant when "due process" is violated on an egregious level as was done in this case.

    The FBI may be able to keep its N.I.T. hacking tool secret but if it expects to have the evidence they collect to be admitted into a criminal trial, then it needs to disclose those tools and how they operate to defense attorneys who are representing these suspects.

    The judge gave the FBI a choice: either (1) disclose the N.I.T. to the defense attorneys (allowing them to investigate how the N.I.T. is used) or (2) keep the N.I.T. secret and lose the evidence collected with it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2016 @ 6:49am

      Re:

      Man you have been out to lunch. This case is a breath of fresh air compared to what has been going on and even then it still a crap shoot.

      Not only have the courts been allowing law enforcement to violate the spirit of the law, they have been assisting them with it!

      You don't have to go an inch to run into a case where an officers testimony is considered evidence even when they have proven to have been lying during the case. There are so many ways law enforcement has made a mockery of the court, and where the courts show to have nothing but contempt for justice.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2016 @ 6:42am

    Evil

    despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.

    How in the FUCK can this be anything other than a conflict of interest. The defendants lawyer should be "Disbarred", and the Federal Agents criminally prosecuted for misconduct, abuse of power, & tampering with evidence.

    The Judge should be put to pasture for allowing this fucking shit show to even get this far along and has past the point of deserving any respect or benefit of doubt! Though I do like that the Judge managed to find, at least, a tiny pair of nads to wear to the bench that day.

    I do not see anyone in congress even giving a shit and neither is our worthless coward of an executive branching doing anything other than apologizing to the world for America defending itself. Looking at how weak Obama makes America look and the anti-American socialist "Physically Violent" Bernie supporters... I am not sure how we are not going to avoid either an internal or external war.

    I don't see the likes of Trump doing a damn thing either. He is just going to be the new King and the Sheeple will fawn over that clown just like the Sheeple fawning over Obama/Hillary/Bernie.

    Nothing good is on the horizon!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2016 @ 8:44am

      Re: Evil

      nothing good to vote for, is a sure sign of a failing system

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 May 2016 @ 10:20am

        Re: Re: Evil

        Agree! I wish I had a lot more fellow American from either party willing to see how the party system is fomenting our hate against each other needlessly!

        For the two party system to succeed, the American system of Government needs to fail. There is not a single good argument for the existence of political parties of any kind, though I have heard a lot of bullshit arguments. They only usurp the will of the people by creating proxy powers that coerce others into believing they have no other choice if they hope to win election. Meanwhile the party leaders lie, wheel & deal behind closed doors while the public is completely unaware!

        reply to this | link to this | view in chronology ]

    • identicon
      corery, 20 Jul 2016 @ 5:37am

      Re: Evil

      No need to disbar the defense lawyer:
      The lawyer can enter contract with FBI and use one of its homeland security or NSA style gag order. Which would keep the lawyers and anyone else for that matter from sharing its secrets and still having access to the evidence needed to defend client.

      The defendant still gets full representation in theory.

      I am NOT happy with the search and seizure part of it at all.

      Also what your seeing taking place right now. Is what happens when civilization collapses. It becomes a nanny state or police state in order to try to keep a dying civilization from falling apart. Without ever learning the lessons of the past. That this path has never worked. Thus it would be wise to try something else.

      But we homo sapiens are stupid, so we repeat history over and over. Only this time our collapse will be much much more horrifyingly spectacular, due to our industrialization.

      reply to this | link to this | view in chronology ]

  • icon
    kenichi tanaka (profile), 27 May 2016 @ 7:09am

    despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.

    AC, defense attorneys do this more frequently than you realize. If it turns out to be more detrimental in releasing that information to the public, defense attorneys won't release it. Engaging in behavior as indicated by that comment by the defense attorney is not a violation of the bar association.

    Additionally, if the information mentioned in a trial is deemed to be too sensitive, attorneys either for the defense, plaintiff or for the prosecution move to close the proceedings and to seal the court record, which makes it immune to FOIA requests as well.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2016 @ 10:30am

      Re:

      So what you are saying that Lawyers must conduct themselves with Integrity in the service of their clients until the Government says they don't have too?

      Yes, perfect!!! another person that fails linguistics. Words mean something and as long as we let logic like yours make the meaning of integrity a loosely defined "concept"... well lets just say, you are just find and dandy letting mutually exclusive terms exists for the sake of expediency.

      There is no universe that exists where a Lawyer in the service of his client can maintain integrity when he is not allowed to share details of a case because "state secret".

      Anyone in disagreement should just shut up and never complain again about anything that is hypocritical in their life or another's! With people like you, this court and all of these lawyers... who in fuck needs enemies willing to murder me for their country, I have to watch my own damn back in my own damn country!

      reply to this | link to this | view in chronology ]

      • identicon
        corey, 20 Jul 2016 @ 5:50am

        Re: Re:

        The poster was saying that the lawyer still represents the client to the best of their ability, with "Full access" to evidence, but they move it to a closed room. Where the public can't see it, nor can get access to it, after the fact. This also protects the defendant to a degree in civil court if the most sensitive evidence that may not or may be valid are gagged.

        I have always been bothered when they separated civil and criminal, it broke the double jeopardy protection, Thus leaving the defendant open, to a nightmare, for the rest of their lives. Through revenge, using the civil courts after being exonerated in criminal courts.

        That way the defendant gets full representation.

        The public is just spectators, they have no right to make judgement. Therefore they do not have the right to see every single piece of evidence themselves.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2016 @ 9:03am

    I don't get it. You have a tool to fight crime yet to keep it under raps. Cases are getting tossed because you don't want it exposed. What are you waiting for? Destroying peoples lives because of the suspicion of guilt? Is that the goal? How long till someone sues for defamation of character? Or can they?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 May 2016 @ 10:38am

      Re:

      You are onto something.

      The holy grail of law enforcement is to be able to take out any citizen through the court system on mere accusation alone. As you can see from all of their concerted efforts that things like due process, rights to face accusations, liberty, or justice are all things they would like to see die.

      For them... court is their drama show... their soap opera, where they gather together like a bunch of jackasses and run a kangaroo court to punish people they politically do not like. And then after they are all said and done... they brag about it, tell the Americans they are tough on crime and that they feel no guilt or pangs of conciseness when innocents are trampled under foot. And then you have those like "kenichi tanaka" let their betters tell them what "integrity" is and that it gets to mean whatever the courts and government needs it to mean to allow lawyers to compromise their position with their clients so the state can screw another citizens for... just because we said we have evidence you can't see, and cannot know how we gathered.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2016 @ 11:40am

    They're trying to find a judge who will let them have their cake and eat it too. Eventually, they will.

    reply to this | link to this | view in chronology ]

    • identicon
      corey, 20 Jul 2016 @ 6:02am

      Re:

      And once they eat their cake. they will have rewritten the law through the courts interpretation. To get their dream that they can circumvent the constitution in their actions against innocent citizens, to which congress won't authorize..

      This is one of the reason they choose "child abuse" as their vector to push it through. Since most people hate "accused" child abusers and are less likely to object to how the evidence was obtained. Exploiting the "We got to protect the children at all costs" mantra.

      Once they establish it here, they can legally use it, in other areas, that would get major public back lash if they had used those areas as the test bed for using NIT. Like cellphone conversations. General internet use, where people are getting redirected to illegal content, or questionable content, like how to make a bomb, as an education process. It won't matter why they looked at the content just the fact that they connected to the content no matter how brief.

      reply to this | link to this | view in chronology ]


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