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

NO. This is not about "foreigners."

[mrchaotica]

Remember, the government is trying to argue that Silk Road was owned by Ulbricht, a US citizen. So what they're really claiming is that the 4th Amendment doesn't apply to a US citizen's papers and effects, if they happen to be physically located outside of the borders of the US. The Constitution imposes no such limitation; therefore, this is clearly unconstitutional.

The government's argument also begs the question -- and I mean that in its proper sense, as in, the government is making a circular argument. From the summary:

"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.' "

There is no such thing as a "blatantly criminal" anything until it has be ruled as such in a court of law. Getting a warrant is exactly what they must do as a first step towards proving something is illegal; they don't get to simply "assume" it's illegal and skip that step. It is exactly the job of the judge issuing the warrant -- and nobody else -- to decide what is "given!"

That concept is so basic and fundamental that it's an axiom upon which the entire US legal system is founded; it boggles the mind to think that any lawyer so incompetent as to make such an argument could even exist!

Re:Color Me Surprised

[mrchaotica]

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

We have seen that. It looks like Ferguson.

Re:Color Me Surprised

[TubeSteak]

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.

I think you underestimate the power of political gerrymandering .
It's one of several reasons that change is very hard to come by in the USA's political process.

There's also the separate issue of our De Facto dual party system which has gone to great lengths to create roadblocks for alternative political parties.

TLDR: The two parties have rigged the electoral process in their favor, damaging the democratic part of our democratic republic.