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United States Government The Courts Your Rights Online

US Says It Can Hack Foreign Servers Without Warrants 335

Advocatus Diaboli tips news that the U.S. government is now arguing it doesn't need warrants to hack servers hosted on foreign soil. At issue is the current court case against Silk Road operator Ross Ulbricht. We recently discussed how the FBI's account of how they obtained evidence from Silk Road servers didn't seem to mesh with reality. Now, government lawyers have responded in a new court filing (PDF). They say that even if the FBI had to hack those servers without a warrant, it doesn't matter, because the Fourth Amendment does not confer protection to servers hosted outside the U.S. They said, "Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to 'hack' into it in order to search it, as any such 'hack' would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary."
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US Says It Can Hack Foreign Servers Without Warrants

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  • Color Me Surprised (Score:5, Insightful)

    by rmdingler ( 1955220 ) on Wednesday October 08, 2014 @07:16AM (#48090279) Journal
    Sigh.

    If nothing else, at least it's out in the open where they have to defend it.

    • by geekmux ( 1040042 ) on Wednesday October 08, 2014 @07:49AM (#48090465)

      Sigh.

      If nothing else, at least it's out in the open where they have to defend it.

      The Old Government response: We cannot confirm nor deny that we were involved in such activity.

      The New Government response: Yeah. We did it. What the fuck are you gonna do about it, peasant. Piss off, or we'll label you a terrorist too.

      If that is what you call a defense, I'd sure as hell hate to see them on the offensive.

      • Re: (Score:2, Interesting)

        by mrchaotica ( 681592 ) *

        If that is what you call a defense, I'd sure as hell hate to see them on the offensive.

        We have seen that. It looks like Ferguson.

      • by ultranova ( 717540 ) on Wednesday October 08, 2014 @09:28AM (#48091407)

        If that is what you call a defense, I'd sure as hell hate to see them on the offensive.

        Burning books while a crowd of thousands cheers? For all their might, the Powers That Be are ultimately just figments of collective imagination. A nation can't arrest or shoot you, it needs someone to do so on its behalf. And if the only reason why anyone might obey is fear, the entire system is one realization away from collapse. What happened in the former Soviet block is an excellent demonstration of just how that works.

        Even the Roman emperors knew their power stemmed from public support, not armed might, hence the need to provide bread and circuses.

        Of course, this is all ignoring the fact that US is a democracy. You don't need a revolution to change the people in charge, you simply need to express support for someone else, and anonymously at that. So if the rulers approve of bullshit like this, and still get re-elected, then don't blame the Government, blame the citizens.

        • by TubeSteak ( 669689 ) on Wednesday October 08, 2014 @10:29AM (#48092289) Journal

          Of course, this is all ignoring the fact that US is a democracy. You don't need a revolution to change the people in charge, you simply need to express support for someone else, and anonymously at that. So if the rulers approve of bullshit like this, and still get re-elected, then don't blame the Government, blame the citizens.

          I think you underestimate the power of political gerrymandering [wikipedia.org].
          It's one of several reasons that change is very hard to come by in the USA's political process.

          There's also the separate issue of our De Facto dual party system which has gone to great lengths to create roadblocks for alternative political parties.

          TLDR: The two parties have rigged the electoral process in their favor, damaging the democratic part of our democratic republic.

    • by Applehu Akbar ( 2968043 ) on Wednesday October 08, 2014 @08:05AM (#48090583)

      The Department of Justice already claims it can steal private property without a warrant or charges being filed, so declaring that power to be extended overseas is a logical next step.

    • by judoguy ( 534886 )
      Thanks Obama [knowyourmeme.com]
    • by duckintheface ( 710137 ) on Wednesday October 08, 2014 @08:52AM (#48090981)

      "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Some parts of the Constitution refer to the rights of Citizens... presumably US Citizens. The 4th Amendment makes not such distinction. People are people and have rights regardless of where they live.

    • by catmistake ( 814204 ) on Wednesday October 08, 2014 @12:10PM (#48093673) Journal

      Sigh.

      If nothing else, at least it's out in the open where they have to defend it.

      Right. And I am certain at every court challenge to this notion, that "the Bill of Rights is only for US citizens on US soil," their idiotic interpretation will fail miserably and immediately. No where in the Constitution does it limit its powers and the extension of the enumerated rights to only US citizens only on US soil. This limitation was never intended by the Founders, thus it is not there, but a thin pathetic fantasy of whomever thought up this canine feces of a legal strategy. The Bill of Rights extends to protect every person, US citizen or not, anywhere and everywhere in the Universe from tyrannical government, according to the letter of the text. It is simply not possible to reasonably and legitimately prove otherwise.

  • by Anonymous Coward on Wednesday October 08, 2014 @07:19AM (#48090291)

    Good news for China and Russian state sponsored haxors then. Perfectly legal for them to steal from US gov and Corps.

    • Yes. It was always legal for them to steal from us. Russia invading Ukraine was also legal.(Russian congress literally passed a law anexing the region) It is also legal for them to nuke a US city. It was legal when the US used sanctions to limit trade with Russia.
  • by AmiMoJo ( 196126 ) * <mojo.world3@net> on Wednesday October 08, 2014 @07:21AM (#48090305) Homepage

    So what they are saying is that anyone outside the US can freely hack US servers without a warrant too. Surely they don't expect special treatment?

    • by pla ( 258480 ) on Wednesday October 08, 2014 @07:26AM (#48090331) Journal
      So what they are saying is that anyone outside the US can freely hack US servers without a warrant too. Surely they don't expect special treatment?

      Dingdingding, we have a winner!

      No doubt, China and Russia will react to this announcement with enthusiasm. "Chinese military hacking DOD computers?" No no no, of course not - They just needed to gather some evidence of "blatantly criminal" activity.


      More seriously, that one phrase bothers me more than the entire rest of the post... When we allow our government to substitute "blatantly criminal" for "probable cause", we may as well just save time and install government cameras in our living rooms now.

      "So why do you need this warrant?" "Come on, man, we know he did it!" "Okay, here you go!"
      • No doubt, China and Russia will react to this announcement with enthusiasm. "Chinese military hacking DOD computers?" No no no, of course not - They just needed to gather some evidence of "blatantly criminal" activity.

        So... Chinese hackers hack into servers of US agencies to find out why US agencies hacked into Chinese servers to find out why Chinese hackers hacked into...

        No, I don't see any problem with that.

        • you're assuming that government sponsored chinese hackers haven't been trying to and succeeding at performing industrial espionage for the better part of a decade.

          this game isn't played with the same rules. It would be ridiculous to expect a higher standard for the US when our economic security is at stake.

    • Surely they don't expect special treatment?

      You do know that US is short for USA and that the A is for America, right?

    • So what they are saying is that anyone outside the US can freely hack US servers without a warrant too. Surely they don't expect special treatment?

      Not really. What they are saying is US Constitutional protections do not apply abroad. Wether or not you agree with that statement is a different issue than saying it's OK to hack into a US computer. The agents hacking into the computer could be guilty of violating the laws of the country that hosts the server an subject to prosecution if that country decides to go after them.

      • by Holi ( 250190 )

        Actually I don;t care whether any of us agree with the statement. It's a moot point since Reid v. Covert, where the Court concluded that U.S. citizens have the same rights against the U.S. government when it acts against them abroad.

    • So what they are saying is that anyone outside the US can freely hack US servers without a warrant too. Surely they don't expect special treatment?

      However, if a US government employee who was somehow involved in cracking a foreign server visited that country, they would presumably still be subject to arrest and prosecution?

      What about extradition? The US has extradited people from their homes after they cracked US servers so they might struggle to argue that US citizens shouldn't be extradited in similar circumstances. Or has "I was breaking the law as part of my job" suddenly become a valid defence?

      And of course "somehow involved" doesn't necessaril

  • While I haven't looked at the court documents, I can't help but think that someone needs to get charged with perjury for providing false testimony for the original story they were pushing.
  • by Punko ( 784684 ) on Wednesday October 08, 2014 @07:23AM (#48090317)
    Usually a foreign property search requires the permission of that country to pre-approve the search. I very much doubt the US requested permission. Violating another country's sovereignty should never be taken lightly.
    • Usually a foreign property search requires the permission of that country to pre-approve the search. I very much doubt the US requested permission. Violating another country's sovereignty should never be taken lightly.

      Which is a separate issue form the one that is being argued. The country could have given permission to US law enforcement to access the server; however that would not answer the question "Does Fourth Amendment protections apply in the case of a non-US search and seizure?" The answer to the later could be yes and thus the search illegal even with host country permission.

  • by maynard ( 3337 ) <j.maynard.gelinas@nOsPaM.gmail.com> on Wednesday October 08, 2014 @07:26AM (#48090333) Journal

    How do US authorities feel about foreign nations hacking into US military and corporate computers? For example, this story: Chinese authorities hacked into Pentagon and other sensitive computers [theguardian.com]:

    China’s military hacked into computer networks of civilian transportation companies hired by the Pentagon at least nine times, breaking into computers aboard a commercial ship, targeting logistics companies and uploading malicious software onto an airline’s computers, Senate investigators said Wednesday. ...

    A yearlong investigation announced by the Senate Armed Services Committee identified at least 20 break-ins or other unspecified cyber events targeting companies, including nine successful break-ins of contractor networks. ...

    Earlier this summer, in an apparently unrelated investigation, the US accused five members of the Chinese military of hacking computers for economic espionage purposes. It accused them of hacking into five US nuclear and technology companies’ computer systems and a major steel workers union’s system, conducting economic espionage and stealing confidential business information, sensitive trade secrets and internal communications for competitive advantage.

    I'm guessing they don't like that. Which perhaps is what the United States means by "American Exceptionalism [wikipedia.org]".

    • by N1AK ( 864906 )

      How do US authorities feel about foreign nations hacking into US military and corporate computers?

      As absolutely wrong as their position is ethically I don't think there's quite the hypocrisy being claimed. I doubt the Chinese are punishing the people hacking into American servers for them either, warrant or not. In theory a US warrant shouldn't even be valid for a server in the UK, so the FBI is commiting a crime in Britain by hacking a machine that is located there without a UK warrant. The question is whe

    • 1) It is not a violation of US law to hack into Chinese computers.

      2) It is not a violation of Chinese law to hack into US computers.

      Neither of the above imply in any way that it's not a violation of Chinese law to hack into Chinese computers, or a violation of US law to hack into US computers.

      Which means that the Americans who hacked into the Chinese computers should not go to China, nor should the Chinese who hacked into American computers go to the USA.

      • by gstoddart ( 321705 ) on Wednesday October 08, 2014 @08:12AM (#48090631) Homepage

        But it also means that if someone does hack into US computers, the US should not be looking to extradite or otherwise seek redress.

        Because if it's legal for you guys to do it, you have no leg to stand on when someone else does it to you.

        But, that's OK. Because the US will just call in a drone strike, and if a few civilians have to die, that's just the cost of doing business.

        Of course, the problem with that, is someone else might decide that your civilians are a valid target.

        An eye for an eye leaves everybody blind.

        I really worry that the road the US is heading down is one of "we don't give a crap about you, your country, or your laws, as long as we have what we want". At which point the US is really not entitled to any sympathy from the rest of the world.

        And, as we've seen over the last decade or so, they might actually be creating more animosity towards themselves.

        They're certainly losing support and sympathy from the rest of the world who doesn't agree that our rights are secondary to their security.

        So, while I understand why the US is in this mess ... I simply am not prepared to cede my rights to yours.

        I used to admire America and what she stood for. Now I'm looking at her and thinking ... wow, what a train wreck. And a train wreck which is becoming scary and dangerous, and in a very big rush to bring on the dystpoian future of a ruthless, paranoid surveillance state.

        Papers please comrade. In my lifetime, America has begun to morph into what they've always stood against. And they're fast becoming scarier than what they used to stand against.

        • As an American, I'm sickened by what America has become.

        • in soviet russia, no discussion would take place. yes hyperbole is fun, but it's also wrong. Stood against totalitarianism, communism and fascism. We are nowhere near that, and will never be, because at least we're having the conversation about how to proceed.

          You're looking at the growing pains of navigating tricky waters in an increasingly complex world.

          How to fight terrorism? can't declare war, nation-states aren't the enemy. How to fight radical islam, without appearing to condone religious discrimina

        • But it also means that if someone does hack into US computers, the US should not be looking to extradite or otherwise seek redress.

          No, what it means is that if foreign police hack into a US computer to gather evidence on a foreign criminal, the US should not be looking to extradite or otherwise seek redress... and the US may actually agree with this argument.

          But, that's OK. Because the US will just call in a drone strike, and if a few civilians have to die, that's just the cost of doing business.

          Not likely. Note that I'm sickened by my government's tendency to bomb with abandon, but there's no way the US is going to be targeting drone strikes at legitimate officials of recognized foreign governments.

          Papers please comrade. In my lifetime, America has begun to morph into what they've always stood against. And they're fast becoming scarier than what they used to stand against.

          I wish I could disagree... I do have some hope, though, that the pendulum

      • You are right that no laws were broken. OTOH, it can be considered acts of war when it moves from spying to direct attacks on systems.
      • 1) It is not a violation of US law to hack into Chinese computers.

        I'm not so sure of that. There have been a a number of amendments over the years to the Computer Fraud and Abuse Act. One in particular broadens "the definition of "protected computer" in 18 U.S.C.1030(e)(2) to the full extent of Congress's commerce power by including those computers used in or affecting interstate or foreign commerce or communication."

        That's a pretty wide net, and could be interpreted to include whatever the prosecutor wants it to.

    • :) my government is there to protect my rights, not yours.

      I always laugh when i see my government spying on other governments and those other governments getting snippy.

      the crime is never the spying, it's the getting caught. My government is there to protect my rights, spy if they must, kill if they really must, but protect me. Your government is also doing the same, and it's at its leisure to spy on me, kill me if they can swing it and decide i'm a terrible threat, or whatnot. This is what i pay for, th

  • by Colin Castro ( 2881349 ) on Wednesday October 08, 2014 @07:30AM (#48090351)
    This makes no sense to me. They claim they don't need a search warrant because it's in another country, but if I lived and worked in another country for a foreign company the US still says I'd have to pay US income tax on that money. If I'm still answerable to US tax law (which is an amendment to the constitution) no matter where I live or who I work for the US government should also be applicable to the same set of rules.
  • by Karmashock ( 2415832 ) on Wednesday October 08, 2014 @07:38AM (#48090393)

    We're beyond trusting these people. Secure your systems and assume the worst.

    • The only secure system is one not connected to the internet at all.
      • Not true, the NSA has a lot of tools for getting past air gaps. They have a long list of tools including screen capture cards built into computer monitor CABLES. So the cable itself has a tiny computer in it, that screen captures the monitor signal, and then broadcasts that signal in an encrypted format to a receiver in the area. And that is just the start.

        So no.... air gapping is not enough. It is very good... and makes penetrating a network a lot harder. But physical security is still the first law.

  • Isn't this very action what the Congress decreed would be construed as an act of war?

  • Drones (Score:5, Insightful)

    by tsa ( 15680 ) on Wednesday October 08, 2014 @07:47AM (#48090451) Homepage

    Well, if you can fly drones and kill innocent people with them in Pakistan without asking the government I guess you can hack their servers too.

  • What court would grant a warrant for an action outside that court's jurisdiction? They don't need a warrant because there is no "do something in Iceland" warrant that can be obtained from a US court, at least not one that the local authorities would recognize.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Extradition Matters.

      Evidence stolen or illegally required is a touchy issue. If it is stolen, how dare anyone assume it is 'real' and not made up. Very easy to set someone up. Nope, the only evidence should be physical. Germany and Merkel should spit the dummy over this claim.
      Reassurances are worthless, and it would be so easy to plant something.

  • "Known to Contain" (Score:5, Insightful)

    by Bob9113 ( 14996 ) on Wednesday October 08, 2014 @08:15AM (#48090653) Homepage

    a search of foreign property known to contain criminal evidence, for which a warrant was not necessary.

    The reason we require you to get a warrant is to distinguish between the two meanings of "known to contain":

    1. I can reasonably demonstrate the probability that this server contains.
    2. I have a gut feeling that this server contains.

    The problem is not that the actual Silk Road server got hacked, which is what the FBI is arguing. The problem is servers that do not contain criminal evidence getting hacked based gut feelings. That is why we require a warrant. We don't want our government hacking into servers on a whim and without a record, regardless of where those servers are physically located.

  • by MitchDev ( 2526834 ) on Wednesday October 08, 2014 @08:23AM (#48090721)

    ...other nations don't need a warrant to hack US-Based Servers.

  • by xiando ( 770382 ) on Wednesday October 08, 2014 @08:36AM (#48090805) Homepage Journal
    I am in the EU. Thank you US Government for giving me permission to hack into servers in your country, them being overseas from where I am an all. I'll get right on that.
  • Swiss Banks? (Score:3, Insightful)

    by turp182 ( 1020263 ) on Wednesday October 08, 2014 @08:39AM (#48090843) Journal

    So are we working to hack Swiss banks or other off-shore financial institutions, looking for tax evasion by US citizens?

    It would be a dragnet, but we know there is tax evasion occurring.

    This would seem reasonable if the precedent stands. Especially if the evidence can be used for further warrants.

    I need to watch Sneakers again...

    • So are we working to hack Swiss banks or other off-shore financial institutions, looking for tax evasion by US citizens?

      It would be a dragnet, but we know there is tax evasion occurring.

      Yeah, but it's typically very wealthy people who are doing that. Wealthy people who tend to donate money to political causes. Catch my drift?

      Remember how Google and Apple and Microsoft and all these big companies are getting out of paying corporate income taxes by "offshoring" their income? Remember how the Democrats are going to do something about it? I get email every few days from left-wing groups telling me about this.

      Look at where Google, Apple, and Microsoft employees invest their political contri

  • by r_naked ( 150044 ) on Wednesday October 08, 2014 @08:44AM (#48090891) Homepage

    To any foreign country out there that doesn't like the US government, please come liberate us and bring us democracy again. As a person that is stuck living in the hell hole that is the USA, I am begging you, please help us -- we are fucked.

    Thanks,

    -- Brian

  • First, it should not matter that the search was electronic or actual. Consider a search of a physical object in another country.

    That is, US courts don't have jurisdiction in Russia, so a US warrant to go to Russia and search a home there is worthless.

    Any search in Russia would either be a) illegal, or b) need a Russian Warrant.

    So if they don't get a Russian warrant, the Russian government could rightfully choose to charge them with a crime committed on Russian soil.

    That said, the question then becomes

  • Does that mean they think they're allowed to hack whatever banks and stock markets they want in foreign countries?

    If so - imagine how effectively they might go after financial crimes.

    Or is this just for when the FBI wants to overlap with the DEA on wars on drugs?

  • They can kill foreign people, what's a bloody server.

  • by mr_mischief ( 456295 ) on Wednesday October 08, 2014 @09:35AM (#48091517) Journal

    Human rights don't work that way. The US Constitution is very carefully worded, especially regarding where it says "person" or "people" and where it says "citizen" or "citizens".

    Here's the Fourth Amendment:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    That doesn't say "citizens". It says "The right of the people".

  • by Hydian ( 904114 ) on Wednesday October 08, 2014 @10:40AM (#48092433)

    ...when this was called espionage and it was conducted by the CIA. If the FBI needed something from outside of our borders, it asked the local police for it because that is how law enforcement is supposed to work...within the rule of law.

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