In addition, the DoJ could be required to reveal to the court the exact method it plans to use to snatch data, along with the steps being taken to minimize the gathering of information from uninvolved third parties. The government could also be required to say when and how that data would be destroyed.
"Transparency and data minimization are critical," Pascual said.
Denying law enforcement needed tools to catch criminals in the electronic world would damage society as much as going too far in compromising privacy rights.
"To deny law enforcement the ability to effectively hack criminals in the course of an investigation, because you believe that it violates privacy, would be tantamount to saying that police officers shouldn't carry firearms because you don't believe in violence," Pascual argued.
As an example of how criminals use Tor, the government submitted documents to the courts' rule-making body, called the U.S. Judicial Conference, describing an investigation of suspected child pornographers who visited a U.S. site on the network.
"In this case, law enforcement knew the physical location of the servers used to host the hidden service," the document said. "However, without use of a NIT, investigators could not identify the administrators or users of the hidden service."
While some judges have already granted warrants for hacking systems, one judge denied a government request, because of the current rules, The Journal reported.
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