The Investigative Dynamics of the Use of Malware by Law Enforcement

By Ohm, Paul | The William and Mary Bill of Rights Journal, December 2017 | Go to article overview

The Investigative Dynamics of the Use of Malware by Law Enforcement


Ohm, Paul, The William and Mary Bill of Rights Journal


INTRODUCTION.....................................................304

I. METHODOLOGY: STUDYING THE DYNAMICS OF LAW ENFORCEMENT INVESTIGATION......................................................307

A. Probably Probable Cause......................................................308

B. The Investigative Dynamics Approach......................................................309

II. LAW ENFORCEMENT USE OF MALWARE......................................................311

A. Malware......................................................311

B. The Investigative Dynamics of Malware......................................................313

1. Malware as a Wasting Resource......................................................313

a. Step One......................................................314

b. Step Two......................................................315

2. Encryption, the Darknet, and Malware......................................................317

a. Step One......................................................318

b. Step Two......................................................319

3.Tailoring, Deploying, and Monitoring Malware............................321

a. Step One..........................................................321

b. Step Two..........................................................323

C. Summarizing the Constraints and Incentives........................324

D. Compared to Other Surveillance Technologies.......................324

III. IMPLICATIONS......................................................326

A. Is the Use of Malware a Search?...................................327

B. De Facto Superwarrant Protections.................................329

C. Malware and Going Dark............................................332

CONCLUSION....................................................................334

INTRODUCTION

From February 20 to March 4, 2015, the FBI infected hundreds and maybe thousands of computers with malware, a computer virus designed to help uncover the identity of people who had configured their computers precisely to avoid being identified.1 The FBI suspected all of the targets of the malware of accessing a website called PlayPen, purportedly the single largest repository of child pornography online at the time.2 The malware fulfilled the FBI's intended purpose, leading to hundreds of arrests in the united states and hundreds of referrals to foreign law enforcement partners.3

The PlayPen case illuminates more than any before it the increasing use by law enforcement of malware-and other forms of government hacking-as an investigative tool.4 The use of malware is sometimes necessary, the FBI contends, to bring to justice people who use encrypted services such as Tor and Tor-hidden services- the heart of what is colloquially called the darknet or dark web-who cannot otherwise be identified, arrested, or deterred.5

Many law and policy questions arise from the use of malware in criminal investigations.6 Is the use of malware to obtain a hidden IP address a search under the Fourth Amendment? Will officials abuse malware to spy on political opponents and dissidents? Should the police be allowed to use malware to investigate minor crimes? Should Congress require additional procedures for law enforcement's use of malware?

All three branches of government will be debating questions like these for some time. These tools are too powerful and the application of prior legal rules to them too uncertain to have ready answers to questions like these. This Article hopes to contribute to the coming debates by clarifying what is possible, likely, unlikely, and impossible to occur as the government expands its development, acquisition, and use of these tools.

To do this, the Article also proposes a distinctive research methodology for assessing the impact of technology on policing, criminal procedure, and criminal justice, one that can be extended far beyond malware. …

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