US Says It Can Hack Foreign Servers Without Warrants

Advocatus Diaboli tips news that the U.S. government is now arguing it doesn't need warrants to hack servers hosted on foreign soil. At issue is the current court case against Silk Road operator Ross Ulbricht. We recently discussed how the FBI's account of how they obtained evidence from Silk Road servers didn't seem to mesh with reality. Now, government lawyers have responded in a new court filing (PDF). They say that even if the FBI had to hack those servers without a warrant, it doesn't matter, because the Fourth Amendment does not confer protection to servers hosted outside the U.S. They said, "Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to 'hack' into it in order to search it, as any such 'hack' would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary."

Comments

Color Me Surprised

[rmdingler]

Sigh.

If nothing else, at least it's out in the open where they have to defend it.

Re:Color Me Surprised

[geekmux]

Sigh.

If nothing else, at least it's out in the open where they have to defend it.

The Old Government response: We cannot confirm nor deny that we were involved in such activity.

The New Government response: Yeah. We did it. What the fuck are you gonna do about it, peasant. Piss off, or we'll label you a terrorist too.

If that is what you call a defense, I'd sure as hell hate to see them on the offensive.

Re:Color Me Surprised

[gl4ss]

they can hack me without warrants, can I hack them without warrants?

point being, they're breaking the law in the country where the servers were in... they're going to slip up some day and hack someone that sues them abroad and in usa...

the way usa runs it's justice spying system, it's a wonder any country still hands over any suspects to usa..

Re:Color Me Surprised

[Applehu Akbar]

The Department of Justice already claims it can steal private property without a warrant or charges being filed, so declaring that power to be extended overseas is a logical next step.

Re:Color Me Surprised

[duckintheface]

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Some parts of the Constitution refer to the rights of Citizens... presumably US Citizens. The 4th Amendment makes not such distinction. People are people and have rights regardless of where they live.

Re:Color Me Surprised

[tnk1]

The other countries don't care... the US hacking their people's computers means that they don't have to. All that needs to happen is the US and EU governments hack computers of the citizens of the other, and then swap the information. Sure, there's still some protections if that evidence was used in court, but there's zero protection if that intel isn't used for a court case, but instead to inform an investigation which then, magically, is able to know exactly where to look to get the information they need to get search warrants and other constitutional case-building evidence.

Re:Color Me Surprised

[Richy_T]

Yes. And for those who aren't aware, this kind of thing has been going on for decades (if not longer). GCHQ and the NSA exchanging data on each others citizens to circumvent the laws (supposedly a contract between a government and its citizens). Largely this has been for industrial espionage purposes to, *not* to protect the interests of the nation.

Re:Color Me Surprised

[mrchaotica]

No, Ferguson looks like a lot of people jumping to a conclusion based on their biases and incomplete information. When young blacks in the South used to be the victims of it, we used to call that a "lynching".

You've got that backwards: it's Darren Wilson who allegedly did something similar to lynching. What "a lot of people" are doing is calling for that allegation to be properly investigated, which is exactly the opposite of jumping to conclusions!

Re:Color Me Surprised

[ultranova]

If that is what you call a defense, I'd sure as hell hate to see them on the offensive.

Burning books while a crowd of thousands cheers? For all their might, the Powers That Be are ultimately just figments of collective imagination. A nation can't arrest or shoot you, it needs someone to do so on its behalf. And if the only reason why anyone might obey is fear, the entire system is one realization away from collapse. What happened in the former Soviet block is an excellent demonstration of just how that works.

Even the Roman emperors knew their power stemmed from public support, not armed might, hence the need to provide bread and circuses.

Of course, this is all ignoring the fact that US is a democracy. You don't need a revolution to change the people in charge, you simply need to express support for someone else, and anonymously at that. So if the rulers approve of bullshit like this, and still get re-elected, then don't blame the Government, blame the citizens.

Re:Color Me Surprised

[BringsApples]

they can hack me without warrants, can I hack them without warrants?

Of course you can do whatever you want. But the real question is, can you convince hundreds of thousands of people to fight a war in your good name? Can you have people work on military weaponry in order to kill large amounts of people in your good name? Because if you can convince hundreds of thousands of people to enlist in your "army" full of weapons that were developed blindly, all in the name of money or whatever, and are capable of launching a large-scale attack on any country that you wish, while all of the rest of the world simply decides to stay out of it, then shit man, you can do whatever you want. But this would take years and years of careful planning, and execution of said plan in a way that no one really understands what's going on. The Nazis failed because they tried to do it all in one generation. It takes year, my friend.

Seriously though, no law exists simply by being on paper. It's up to men (and women) to decide what's right or wrong, write laws, follow those laws, and enforce those laws. These day, however, it appears that people have stopped caring about right or wrong. It's all about the !!!$$$BLING$$$BLING$$$!!!

Re:Color Me Surprised

[amiga3D]

The real question is....can you get away with it?

Re:Color Me Surprised

[catmistake]

Sigh.

If nothing else, at least it's out in the open where they have to defend it.

Right. And I am certain at every court challenge to this notion, that "the Bill of Rights is only for US citizens on US soil," their idiotic interpretation will fail miserably and immediately. No where in the Constitution does it limit its powers and the extension of the enumerated rights to only US citizens only on US soil. This limitation was never intended by the Founders, thus it is not there, but a thin pathetic fantasy of whomever thought up this canine feces of a legal strategy. The Bill of Rights extends to protect every person, US citizen or not, anywhere and everywhere in the Universe from tyrannical government, according to the letter of the text. It is simply not possible to reasonably and legitimately prove otherwise.

China & Russia off the hook then

[Anonymous Coward]

Good news for China and Russian state sponsored haxors then. Perfectly legal for them to steal from US gov and Corps.

So what they are saying...

[AmiMoJo]

So what they are saying is that anyone outside the US can freely hack US servers without a warrant too. Surely they don't expect special treatment?

Re:So what they are saying...

[pla]

So what they are saying is that anyone outside the US can freely hack US servers without a warrant too. Surely they don't expect special treatment?

Dingdingding, we have a winner!

No doubt, China and Russia will react to this announcement with enthusiasm. "Chinese military hacking DOD computers?" No no no, of course not - They just needed to gather some evidence of "blatantly criminal" activity.


More seriously, that one phrase bothers me more than the entire rest of the post... When we allow our government to substitute "blatantly criminal" for "probable cause", we may as well just save time and install government cameras in our living rooms now.

"So why do you need this warrant?" "Come on, man, we know he did it!" "Okay, here you go!"

Re:So what they are saying...

[Somebody Is Using My]

I came to say exactly this.

A core precept of US law is that "all people" have certain unalienable rights, be they citizen or not, at home or abroad. The government does not bestow these rights upon us; the US Constitution merely lists the situation in which those rights may be abrogated for the good of a better society. This fundamental belief is also part of the reasoning for US interventionism abroad. While we cannot in all situations ensure those rights to all people, the reasoning (if not actual cause) is that the US should do what it can to prevent those unalienable rights from trampling regardless of whether or not they are US citizens.

However, this reasoning has an important caveat that is increasingly being ignored (though it's not new): the US must act as if those non-citizens have the same rights and protections as US citizens. While it may be impossible to ensure that every foreign national has free-speech, speedy trial or any of the other rights Americans take for granted, still the US government should not and cannot act against those rights. So the idea that foreigners should not be protected by the need for a warrant is blatantly opposed to the core concepts behind the founding of this country.

One of the reasons for this shift in policy is not some malign conspiracy of foreigner-hating tyrants but a critical misunderstanding of the relationship between people and the government by its own citizens (including those who work for the government). Too often that relationship is seen as patriarchal: the government dispenses the rights, and therefore it has the right to suspend them, either in whole or in part, affecting some or all of those under its influence, as per its own whim. This is incorrect; not only is it that "We-the-People" voluntarily allow ourselves to be restricted, but as a "people" those restrictions must apply fairly to everyone, not just citizens. Doing otherwise merely creates divisions that can be too easily exploited against ourselves later on.

It's worth reminding people of the difference.

Re:So what they are saying...

[Archtech]

So if I come visit US I have zero rights?

No. Aliens in the US have essentially the same civil rights as citizens.

So if he comes to visit the US he has zero rights.

Re:So what they are saying...

[Archtech]

"It would be ridiculous to expect a higher standard for the US when our economic security is at stake".

In other words:

We believe wholeheartedly in freedom, democracy, and human rights... unless that looks as if it might lose us some money - in which case forget about it.

Sovereignty Issues ?

[Punko]

Usually a foreign property search requires the permission of that country to pre-approve the search. I very much doubt the US requested permission. Violating another country's sovereignty should never be taken lightly.

American Exceptionalism

[maynard]

How do US authorities feel about foreign nations hacking into US military and corporate computers? For example, this story: Chinese authorities hacked into Pentagon and other sensitive computers:

China’s military hacked into computer networks of civilian transportation companies hired by the Pentagon at least nine times, breaking into computers aboard a commercial ship, targeting logistics companies and uploading malicious software onto an airline’s computers, Senate investigators said Wednesday. ...

A yearlong investigation announced by the Senate Armed Services Committee identified at least 20 break-ins or other unspecified cyber events targeting companies, including nine successful break-ins of contractor networks. ...

Earlier this summer, in an apparently unrelated investigation, the US accused five members of the Chinese military of hacking computers for economic espionage purposes. It accused them of hacking into five US nuclear and technology companies’ computer systems and a major steel workers union’s system, conducting economic espionage and stealing confidential business information, sensitive trade secrets and internal communications for competitive advantage.

I'm guessing they don't like that. Which perhaps is what the United States means by "American Exceptionalism".

Re:American Exceptionalism

[gstoddart]

But it also means that if someone does hack into US computers, the US should not be looking to extradite or otherwise seek redress.

Because if it's legal for you guys to do it, you have no leg to stand on when someone else does it to you.

But, that's OK. Because the US will just call in a drone strike, and if a few civilians have to die, that's just the cost of doing business.

Of course, the problem with that, is someone else might decide that your civilians are a valid target.

An eye for an eye leaves everybody blind.

I really worry that the road the US is heading down is one of "we don't give a crap about you, your country, or your laws, as long as we have what we want". At which point the US is really not entitled to any sympathy from the rest of the world.

And, as we've seen over the last decade or so, they might actually be creating more animosity towards themselves.

They're certainly losing support and sympathy from the rest of the world who doesn't agree that our rights are secondary to their security.

So, while I understand why the US is in this mess ... I simply am not prepared to cede my rights to yours.

I used to admire America and what she stood for. Now I'm looking at her and thinking ... wow, what a train wreck. And a train wreck which is becoming scary and dangerous, and in a very big rush to bring on the dystpoian future of a ruthless, paranoid surveillance state.

Papers please comrade. In my lifetime, America has begun to morph into what they've always stood against. And they're fast becoming scarier than what they used to stand against.

But they can tax your overseas income?

[TheCastro1689]

This makes no sense to me. They claim they don't need a search warrant because it's in another country, but if I lived and worked in another country for a foreign company the US still says I'd have to pay US income tax on that money. If I'm still answerable to US tax law (which is an amendment to the constitution) no matter where I live or who I work for the US government should also be applicable to the same set of rules.

Secure your systems

[Karmashock]

We're beyond trusting these people. Secure your systems and assume the worst.

Drones

[tsa]

Well, if you can fly drones and kill innocent people with them in Pakistan without asking the government I guess you can hack their servers too.

"Known to Contain"

[Bob9113]

a search of foreign property known to contain criminal evidence, for which a warrant was not necessary.

The reason we require you to get a warrant is to distinguish between the two meanings of "known to contain":

1. I can reasonably demonstrate the probability that this server contains.
2. I have a gut feeling that this server contains.

The problem is not that the actual Silk Road server got hacked, which is what the FBI is arguing. The problem is servers that do not contain criminal evidence getting hacked based gut feelings. That is why we require a warrant. We don't want our government hacking into servers on a whim and without a record, regardless of where those servers are physically located.

Re:What Court?

[Anonymous Coward]

Extradition Matters.

Evidence stolen or illegally required is a touchy issue. If it is stolen, how dare anyone assume it is 'real' and not made up. Very easy to set someone up. Nope, the only evidence should be physical. Germany and Merkel should spit the dummy over this claim.
Reassurances are worthless, and it would be so easy to plant something.

Swiss Banks?

[turp182]

So are we working to hack Swiss banks or other off-shore financial institutions, looking for tax evasion by US citizens?

It would be a dragnet, but we know there is tax evasion occurring.

This would seem reasonable if the precedent stands. Especially if the evidence can be used for further warrants.

I need to watch Sneakers again...

Re:Wtf?!

[tehcyder]

Everyone on slashdot seems confused because this is on the internet. Spying is spying. It's legal in your own country to spy on foreign powers, it's illegal in the country you're spying on.
You're never going to agree to the extradition of one of your own spies if they get exposed, which is why you occasionally get "tit for tat" diplomatic expulsions, as it's the only real way of showing that you know you've been spied on, as the spy will most likely have diplomatic cover.

If you get caught red-handed spying abroad, it depends on which country you're talking about. North Korea would probably execute you, Canada would pack you off home and take you off their "actual diplomats" list.