Government Hacking

By Mayer, Jonathan | The Yale Law Journal, January 2018 | Go to article overview

Government Hacking


Mayer, Jonathan, The Yale Law Journal


AUTHOR. Cyber Initiative Fellow, Stanford University; Assistant Professor of Computer Science and Public Affairs, Princeton University (effective March 2018); J.D., Stanford Law School; Ph.D. candidate, Stanford University Department of Computer Science. The author currently serves as a Legislative Fellow in the Office of United States Senator Kamala D. Harris. All views are solely the author's own and do not reflect the position of the United States government. This work draws upon conversations at the Federal Judicial Center Fourth Circuit Workshop, Federal Judicial Center Sixth Circuit Workshop, Federal Judicial Center Ninth Circuit Mid-Winter Workshop, Federal Judicial Center Workshop for United States Magistrate Judges, the Privacy Law Scholars Conference, and the Rethinking Privacy and Surveillance in the Digital Age event at Harvard Law School. The project benefits from the wisdom and feedback of countless colleagues, including Julia Angwin, Kevin Bankston, Dan Boneh, Ryan Calo, Cindy Cohn, Laura Donohue, Hanni Fakhoury, Nick Feamster, Ed Felten, Laura Fong, Jennifer Granick, James Grimmelmann! Marcia Hofmann, Orin Kerr, Mark Lemley, Whitney Merrill, John Mitchell, Ellen Nakashima, Paul Ohm, Kurt Opsahl, David Pozen, Chris Riley, Barbara van Schewick, Michael Shih, David Sklansky, Peter Swire, Elisabeth Theodore, Lee Tien, George Triantis, and Tyce Walters. The editors of the Yale Law Journal, led by Jeremy Aron-Dine, provided invaluable recommendations on the Article's substance and organization. The author is especially grateful to the federal judges, attorneys, and law enforcement officers who informed this Article's discussion of the law, policy! and technology issues associated with government hacking.

ARTICLE CONTENTS

INTRODUCTION                                                         574
I. IS LAW ENFORCEMENT HACKING A FOURTH AMEN DMENT "SEARCH"?          581
 A. The Technical Architecture of Government Malware                 583
  1. Delivery                                                        583
  2. Exploitation                                                    586
  3. Execution                                                       588
  4. Reporting                                                       589
 B. Conventional Methods for Obtaining Electronic Evidence and
    Corresponding Perspectives on Fourth Amendment Privacy           590
  1. Physical Access to an Electronic Device and the Device-Centric
     Perspective                                                     590
  2. Remote Access to Information via a Third Party and the
     Data-Centric Perspective                                        592
 C. Obtaining Electronic Evidence by Hacking                         594
  1. The Easy Scenarios: Physical Access or Content                  594
  2. The Hard Scenario: Remote Access to Metadata                    596
   a. A Plausible Position: No Fourth Amendment Protection           596
    i. Mobile Phone Location Tracking                                600
    ii. ISP Surveillance                                             601
    iii. Mobile Phone Serial Numbers                                 603
    iv. Payment Card Magnetic Stripes                                604
    v. Placing Telephone Calls                                       604
   b. A Better Position: The Fourth Amendment Protects
      Logical Integrity                                              609
    i. Katzv. United States                                          609
    ii. Riley v. California                                          609
    iii. Cloud Service Searches and United States v. Warshak         610
    iv. The Consent-Based Limiting Principle for Constitutional
        Information Privacy                                          611
    v. Policy Considerations                                         613
II. RULES FOR MALWARE                                                614
 A. Initiating a Search                                              615
 B. … 

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