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Criminal defendants demand to see FBI's secret hacking tool

Grant Gross | May 23, 2016
Courts are facing a decision: Expose the FBi's techniques or allow defendants to see the evidence against them.

"Sharing that detailed information in this scenario doesn’t necessarily mean that information should be released to the public," he said by email. "The implications of the FBI being forced to share these techniques could expose their technical capacity and/or their dependence on external sources to help with hacking techniques. In other words, the general public would begin to understand the level of technical capabilities of the FBI." 

In the Michaud case, the defendant's lawyer had agreed earlier to view the source code using FBI-approved security measures, but the FBI backed away from that compromise.

Look for inconsistent rulings across the U.S. related to secret government hacking tools, added James Goodnow, a lawyer with the Fennemore Craig law firm in Phoenix.

"This is a classic example of the law not keeping up with technology," Goodnow said by email. "The law on the disclosure of source code is murky, at best."

The issue is "ripe" to go to an appeals court, or even the U.S. Supreme Court, he added.

In addition, expect more defendants to challenge government hacking techniques, with their lawyers questioning whether the hacking exceeded the limits of a warrant, Goodnow added.

"When it comes to source code, defendants are going to argue that they have a constitutional right to explore whether the officer provided the judge with enough specificity about how evidence was being obtained and whether the obtained evidence is within the scope of that warrant," he said. "No code; no due process; no conviction -- at least that’s how the argument will go."

 

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