Judge denies FBI's request to 'hack a computer'

Posted By Kristen Butler, UPI.com  |  Updated April 25, 2013 at 3:03 PM
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U.S. Magistrate Judge Stephen Smith in Houston, Texas, refused to approve a sealed search warrant application that would let the government "hack a computer suspected of criminal use."

The Federal Bureau of Investigation said it needed the information to pursue federal bank fraud, identity theft and computer security charges, reports Courthouse News Service.

"In early 2013, unidentified persons gained unauthorized access to the personal email account of John Doe, an individual residing within the Southern District of Texas, and used that email address to access his local bank account," the 13-page order states.

"The Internet protocol (IP) address of the computer accessing Doe's account resolves to a foreign country. After Doe discovered the breach and took steps to secure his email account, another email account nearly identical to Doe's -- the address differed by a single letter -- was used to attempt a sizeable wire transfer from Doe's local bank to a foreign bank account."

The government applied for the warrant under Rule 41, but it failed to satisfy any of the territorial limits of the rule, Smith found. Smith said "many courts have analogized computers to large containers filled with information," for the purposes of search-and-seizure law, but added that the rule does not permit the FBI to "roam the world in search of a container of contraband," as long as they don't open until they get home.

"Contrary to the current metaphor often used by Internet-based service providers, digital information is not actually stored in clouds; it resides on a computer or some other form of electronic media that has a physical location. Before that digital information can be accessed by the government's computers in this district, a search of the target computer must be made. That search takes place, not in the airy nothing of cyberspace, but in physical space with a local habitation and a name."

Smith denied the "novel" request, saying "The court has found no case willing to stretch the territorial limits" of Rule 41, and noting that the FBI hack might affect individuals who are not involved in the crime. "What if the target computer is located in a public library, an Internet café, or a workplace accessible to others?" Smith asked. "What if the computer is used by family or friends uninvolved in the illegal scheme? What if the counterfeit email address is used for legitimate reasons by others unconnected to the criminal conspiracy? What if the email address is accessed by more than one computer, or by a cell phone and other digital devices? There may well be sufficient answers to these questions, but the government's application does not supply them."

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