The use of hacking by federal law enforcement agents to gather evidence has been increasing. However, attorneys who practice criminal defense law in Virginia and the rest of the country now have strategies for challenging the surveillance technique used to obtain the evidence and to make the evidence inadmissible in court.
Attorneys at the American Civil Liberties Union, the Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers have issued a report that describes how law enforcement hacking can be fought. The report is intended to provide attorneys with the information they need to provide their clients with a vigorous defense and to make sure that any hacking conducted by law enforcement is in accordance with the Constitution and applicable statutes.
A change in federal criminal court procedures, which was supported by the U.S. Justice Department, has allowed federal agents to use just one warrant to covertly and remotely examine thousands of computers. They are not required to detail whose data they are collecting or where the users are located.
In one of the most expansive hacking campaigns conducted by the government, the FBI used a website it had seized under the suspicion that it was hosting child pornography and continued to operate it instead of shutting it down. With just one warrant, the FBI used the site to hack into the computers of the users that accessed it. This resulted in almost 9,000 devices in 120 countries being surveilled. Many of the hundreds of users that the FBI charged are disputing the validity of the warrant.
A criminal defense attorney will work to ensure that clients' rights are protected while defending them against charges of criminal wrongdoing. Arrest reports, witness statements and warrants will be scrutinized to determine whether the actions of authorities complied with the law.