There are a bunch of different cases going on right now concerning the FBI secretly running the hidden Tor based child porn site Playpen for two weeks, then tracking users of the site wit malware in order to identify them. The courts so far have been fine with the FBI’s overall actions of running the site, but there are increasing questions about how it hacked Playpens users. The FBI said they used an NIT to hack into the computers, but the FBI really doesn’t want to talk about the details.
It was revealed that in one case the warrant used by the FBI never mentions either hacking or malware, suggesting that the FBI actively misled the judge. In another case, a judge has declared the use of the NIT to be illegal searches based on jurisdictional questions; the warrants were for Virginia, but the individuals were far away from there.
In the case involving Jay Michaud, his lawyers have now told the court that the DOJ has made it clear that despite the court ruling earlier this year that the FBI must reveal the details of the NIT, or whatever hacking tool, it will not do so. The redacted filing is in response to a sealed motion for reconsideration by the DOJ, but it tells more or less what the DOJ said in that filing.
“The government has now made plain that the FBI will not comply with Court’s discovery order….The government further acknowledges that there may be consequences for this refusal. Pursuant to the law discussed below, the consequences are straightforward; the prosecution must now choose between complying with the courts discovery order and dismissing the case,” the filing also said.
The dilemma is one entirely of the governments own making, and nothing in its motion for reconsideration or renewed requests for secret proceedings changed the analysis,” the filing reads.
The filing goes on to point out how the FBI has similarly been refusing to reveal details for its Stingray mobile phone surveillance tools. This has lead to convictions being overturned. As Michaud’s lawyer pointed out, the situation here is basically the same. If the FBI refuses to obey a court order, then the case should be dropped.
As the Maryland court observed, the FBI’s obstruction of disclosure from special order and warrant application through appellate review, prevents the court from exercising its fundamental duties under the constitution. It is self evident that the court must understand why and how a search was conducted, and the analytical framework requires analysis of the functionality of the surveillance device and the range of information potentially revealed by its use.” These conclusions mirror the conclusions reached by this court at the Feb. 17th hearing.
The filing also points out how important it is to get the details, nothing that the FBI has a history of incorrectly raiding homes because it doesn’t understand how Tor works.
“The governments refusal to comply with the discovery order is all the more untenable given the exceptional technical complexities that are involved with the Tor Network and the FBI’s use of sophisticated hacking techniques,” the filing reported.
Just a few weeks ago, Seattle Police raided the home of two people who use the Tor network, based on allegation that their IP addresses had been linked to child pornography, when in fact illicit traffic had merely passed through their connection to the network.
The lawyers also point out how the DOJ/FBI’s claims here run exactly counter to the DOJ/FBI’s arguments about Apple’s obligation to respond to the DOJ’s court order to help unlock encrypted phones.
Their complaint is that the DOJ said that Apple could used a secure location to keep the code safe, but rejects such a solution here. The comparison could go even deeper. The DOJ kept saying that Apple was acting as if it was above the law in telling the FBI that it would not write special software to help break into a phone. The request is much more straightforward. The FBI doesn’t have to write any new code at all, it just has to reveal what it has been told to reveal by a court; the software it used to hack into someones computer.
Theres also the fact that because the whole Apple/DOJ fight, Senators Dianne Feinstein and Richard Burr started pushing a bill to ban encryption that opens with the following: