Hacking for evidence: the risks and rewards of deploying malware in pursuit of justice
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Hacking for evidence: the risks and rewards of deploying malware in pursuit of justice Steven David Brown1
© Europäische Rechtsakademie (ERA) 2019
Abstract Law enforcement use of hacking techniques has become well-established and is an inevitable consequence not only of endemic anonymization used by computer-based criminals, but also of the increasing dominance of cloud-based computing models that challenge traditional notions of jurisdiction. Whilst recognising the many and legitimate concerns of privacy watchdogs this article explores how and why law enforcement uses malware to target criminals who would otherwise operate with virtual impunity. Keywords Hacking · Law enforcement · Electronic evidence · N.I.T.s · Cyber
Criminal justice has always recognised exceptions for law enforcement when it comes to actions that would otherwise be regarded as criminal. Given the right set of circumstances, officers may carry and use weapons, offer to sell narcotics, physically restrain and detain members of the public, seize property etc, all in support of the ‘greater good’. These exceptions have evolved over centuries along with suitable safeguards and (in many countries) a generally robust system of judicial oversight. They reflect the fact that, in maintaining law and order and in protecting the public, sometimes, the application of coercive and intrusive acts against individuals and in private spaces may be necessary and in the public interest. Consider, for instance, what happens during the execution of a typical search warrant in the ‘real’ physical world: Having convinced the appropriate authority of the legal formalities and of a reasonable suspicion, usually substantiated on oath, that
B S.D. Brown
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1
Barrister, CFE, Vienna, Austria
S.D. Brown
evidence of a crime will be found on a premises,1 the designated officers attend the stated location. In effecting entry, the search team may legitimately resort to force which may involve causing damage. Once inside, and usually against the remonstrations of the occupiers, they will proceed to rifle through the cupboards and drawers looking for items listed in the warrant. As they do so they are very likely to come across intimate articles and confidential correspondence, even privileged material, but, if such items resemble those mentioned in the warrant, the search team must nevertheless inspect them to ensure they have no evidential value, are not being used to conceal evidence, and/or are, indeed, covered by ‘privilege’. More than that, the searching officers may well be intruding into a shared living space and be sifting through property that belongs to third parties who also reside there and whom are not suspected of any wrongdoing. Their property also has to be viewed and reviewed in order to be excluded. Once seen, any confidential matter cannot be forgotten and, should that extra, unrelated material be indicative of other offences, further enquiries will ensue. One traditional element of any lawful search warrant is that the premises mu
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