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Is FBI Using Classified Tools for Everyday Investigations?

by Christopher Zoukis

The website reported on a Department of Justice Inspector General’s report looking into how the FBI uses classified tools meant for national security investigations in run-of-the-mill cases. It seems that government-developed software hacks, malware, and surveillance equipment—classified, national security tools—are finding their way across a “line in the sand” meant to keep them out of regular domestic investigations.

CLN reported on law enforcement’s extensive use of cell-site simulator technology in its July 2018 cover story. Colloquially known as stingrays, these devices were originally developed by the Pentagon for use in national-security operations overseas. Now the devices are used to hijack and track the cellphones of unwitting individuals suspected of everything from theft of chicken wings to robbery.

Techdirt profiled two other high-tech tools that have been co-opted for domestic investigations.

One is a secret tool developed by a third-party vendor, which the FBI reportedly used to decrypt the iPhone of the San Bernardino shooter.

Another one, a malware exploit, was reportedly used to reveal dark web child pornography site users. It was unclassified but the Bureau attempted to classify it for “national security reasons.”

Use of classified and secret national security tools to target domestic criminals presents a significant constitutional dilemma. Law enforcement wants to keep the technology secret so that it remains useful in investigations. But the constitution prohibits unreasonable searches and guarantees criminal defendants the right to discovery.

American Civil Liberties Union staff attorney Brett Kauffman told that law enforcement treads on thin ice when it makes use of classified tools.

“When hacking tools are classified, reliance on them in regular criminal investigations is likely to severely undermine a defendant’s constitutional rights by complicating discovery into and confrontation of their details,” Kauffman said. “If hacking tools are used at all, the government should seek a warrant to employ them, and it must fully disclose to a judge sufficient information, in clear language, about how the tools work and what they will do.” 


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