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

[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

[tehcyder]

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

Yes.

Disclaimer: IANAL

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...

[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.

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".

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!