Privacy advocates are claiming in court that an FBI hacking operation to take down a child pornography site was unconstitutional and violated international law.
That’s because the operation involved the FBI hacking 8,700 computers in 120 countries, based on a single warrant, they said.
“How will other countries react to the FBI hacking in their jurisdictions without prior consent?” wrote Scarlet Kim, a legal officer with U.K.-based Privacy International.
On Friday, that group, along with the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Massachusetts, filed briefs in a lawsuit involving the FBI’s hacking operation against Playpen. The child pornography site was accessible through Tor, a browser designed for anonymous web surfing. But in 2014, the FBI managed to take it over.
In a controversial move, the agency then decided to use the site to essentially infect visitors with malware as a way to track them down.
As a result, the FBI is prosecuting hundreds who were found visiting the site, but it also happened to hack into computers from 120 countries.
On Friday, the three privacy groups filed briefs in a case involving Alex Levin, a suspect in the FBI’s Playpen investigation who’s appealing the way the agency used malware to gather evidence against him.
Privacy International claims that the warrant the FBI used to conduct the hacking is invalid. This is because the U.S. was overstepping its bounds by conducting an investigation outside its borders without the consent of affected countries, the group said.
According to Privacy International, the case also raises important questions: What if a foreign country had carried out a similar hacking operation that affected U.S. citizens? Would the U.S. welcome this?
The EFF and ACLU also claim that the FBI’s warrant was invalid, but they cite the U.S. Constitution, which protects citizens from unreasonable searches.
“Here, on the basis of a single warrant, the FBI searched 8,000 computers located all over the world,” EFF attorney Mark Rumold wrote in a blog post. “If the FBI tried to get a single warrant to search 8,000 houses, such a request would unquestionably be denied.”
A key concern is that a warrant to hack into so many computers will set a precedent. “Even serious crimes can’t justify throwing out our basic constitutional principles,” Rumold said.
U.S. attorneys have argued in court that the FBI followed proper procedures in obtaining its warrant from a federal judge. They said the FBI’s hacking techniques managed to identify hundreds of Playpen users who otherwise were cloaked in anonymity.
Allowing the Playpen suspects “to evade capture and carry on abusing children in the dark shadows of Tor would be repugnant to justice,” the U.S. attorneys argued in court in October.
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