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Government Privacy Security

Supreme Court Gives FBI More Hacking Power (theintercept.com) 174

An anonymous reader cites an article on The Intercept (edited and condensed): The Supreme Court on Thursday approved changes that would make it easier for the FBI to hack into computers, many of them belonging to victims of cybercrime. The changes, which will take immediate effect in December unless Congress adopts competing legislation, would allow the FBI go hunting for anyone browsing the Internet anonymously in the U.S. with a single warrant. Previously, under the federal rules on criminal procedures, a magistrate judge couldn't approve a warrant request to search a computer remotely if the investigator didn't know where the computer was -- because it might be outside his or her jurisdiction. The rule change would allow a magistrate judge to issue a warrant to search or seize an electronic device if the target is using anonymity software like Tor."Unbelievable," said Edward Snowden. "FBI sneaks radical expansion of power through courts, avoiding public debate." Ahmed Ghappour, a visiting professor at University of California Hastings Law School, has described it as "possibly the broadest expansion of extraterritorial surveillance power since the FBI's inception."
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Supreme Court Gives FBI More Hacking Power

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  • Needs to be said (Score:2, Insightful)

    by Anonymous Coward

    ...because apparently most people just don't get it.

    You wanted big government? THIS IS IT.

    Stated another way, you can't have big government without gross violations of civil rights. It's absolutely impossible. The only way to eliminate those gross violations of civil rights is to place strict limits on the size and scope of government, which naturally rules out the notion of big government.

    • by Anonymous Coward

      They will do nothing, even when the jackboot is on their neck, except lick it with wide eyes vigorously . Human nature. If this were not so, China, North Korea, Belarus, Bulgaria would not exist. Endless cycle, build and destroy.

    • by TheGratefulNet ( 143330 ) on Friday April 29, 2016 @09:27AM (#52012635)

      this isn't 'big government'.

      this is corruption, pure and simple, and can happen even in the smallest of governments.

      please explain why you think 'size matters' (ahem..) in this kind of situation.

      human psychology kicks in, here. humans love to control and manipulate each other. stanford prisoner experiment and all that. this is what happens when you give unlimited power to ANY kind of authority figure; large, small, doesn't matter.

      this is why checks and balances are so important.

      sadly, we threw out the balance and we only have the check left....

      • Any organization can be corrupt, but bad people aren't after just a little bit of power. They flock towards the largest organizations with the most potential for abuse. By limiting government, you limit that potential for abuse.

        • by Anonymous Coward

          Parent is wrong.

          1) power appeals to "bad people" in all amounts - sociopaths get their kicks from child abuse to middle management to serial killing.

          2) The SYSTEM eventually influences everybody; even physiology experts who design the experiments - as the science shows (ex: stanford prisoner experiment.) The greatest influence of all are the bad elements within the system itself - they do not need to be human or be planned to be corrupting to be highly potent.

          3) "Good people" as well as normal people are p

      • this isn't 'big government'.

        this is corruption, pure and simple, and can happen even in the smallest of governments.

        please explain why you think 'size matters' (ahem..) in this kind of situation.

        human psychology kicks in, here. humans love to control and manipulate each other. stanford prisoner experiment and all that. this is what happens when you give unlimited power to ANY kind of authority figure; large, small, doesn't matter.

        this is why checks and balances are so important.

        sadly, we threw out the balance and we only have the check left....

        Maybe its time for a 199,000 Americans to load up their emails with encrypted data. And for them to use words such as this attached file is safe and not inflamatory.

        Overload the FBI Scanners with a few hundred emails that will keep the FBI systems busy for years.

    • by Anonymous Coward
      And I seem to recall, oh about 14 years ago or so, when folks (mainly on the Left) were trying to draw attention to the expanded powers granted under the then new "Patriot Act". Do you want to know what the common response from the Right was? "Well, if you aren't doing anything wrong then you have nothing to hide and nothing to worry about." I find it ironic that so many are concerned today, when they're probably the same ones that dismissed it when it could have been stopped.
    • by Anonymous Coward on Friday April 29, 2016 @09:46AM (#52012801)

      "Big Government" is a term explicitly used to justify the elimination of social programs such as medicaid, social security and education.

      In no instance of any 'fight' against "Big Government" has corporate welfare, military overspending and the vast overreaching groping rapehands of our overzealous intelligence apparatus *ever* so much as once been placed or suggested as the necessary cuts.

      These are the oversized moneysinks being used to strangle both our rights and our economy, and none of us outside of their actual apparatus ever wanted them around.

      Yet we're forced to pick between cutting education and refusing our retirees the retirement investment they've spent their entire working life paying into, "to get rid of big government"

    • by Anonymous Coward

      ...because apparently most people just don't get it.

      You wanted big government? THIS IS IT.

      I guess that's why so many of the countries considered "most corrupt" (http://country-corruption.findthedata.com/saved_search/Most-Corrupt-Countries) have such large governments:
      Afghanistan
      North Korea
      Somalia
      Sudan
      Myanmar
      Uzbekistan
      Turkmenistan
      Iraq
      Burundi
      Chad
      Haiti
      Venezuela

      Of these top (bottom) 12, maybe 3 have governments that could be considered large.

  • Crap like this is why they wanted him out of the way.

    • what about that suicide at apple did that person help the FBI and then apple found out they pushed him over the edge?

      Better send in mulder and scully

  • by mandark1967 ( 630856 ) on Friday April 29, 2016 @09:07AM (#52012519) Homepage Journal

    welcome our web browser monitoring overlords and wish them well in their endeavors at world domination.

  • by Ed Tice ( 3732157 ) on Friday April 29, 2016 @09:10AM (#52012527)
    This seems to be the only reasonable outcome although I'm sure the conspiracy theorists will have a heyday with it. If somebody has effectively disguised the physical location of their machine, there's no way to know which jurisdiction should issue the warrant. This creates a Catch-22 situation that is untenable. The only reason to consider this problematic is if you are of the belief that those with a certain level of technical skill should be exempt from the law.
    • ... there is no catch-22, it means they have to do their fucking jobs and do the I part of FBI ... you know ... INVESTIGATE

      • How can you investigate when the people are using Tor which prevents it? You have no right to be anonymous.
        • You have no right to be anonymous.

          So that's not covered under the right to privacy? Cause a reasonable person would interpret it as so.

      • Yes and certain types of investigation require a warrant. That's to protect people from harassment. The issue is that Tor use makes it impossible to know the correct jurisdiction to get such warrant. That's why its a Catch-22 that has just been resolved by saying that, in such a case, a majistrate judge can approve a warrant for a machine with an unknown physical location. They still have to meet all other criteria for the warrant.
        • by Anonymous Coward

          Is there any restriction on who they can go to for that warrant though? Can they go warrant shopping so-to-speak and find more lenient judges?

  • by Anonymous Coward on Friday April 29, 2016 @09:13AM (#52012551)

    "search or seize an electronic device if the target is using anonymity software like Tor"

    They basically ruled that using the Tor Browser or any anonymity software is an admission you must be doing something wrong so therefore the warrant covers it all.

    What is innocent until proven guilty?

    "immediate effect in December"

    Either the effect is immediate (this means NOW) or in December (which means later). What is the English language?

    • by tranquilidad ( 1994300 ) on Friday April 29, 2016 @09:35AM (#52012695)

      "search or seize an electronic device if the target is using anonymity software like Tor"

      That might be what the article said but that's not what the Supreme Court said in its letter to Congress and the President.

      The Supreme Court said:

      (b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:
      * * * * *
      (6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
      (A) the district where the media or information is located has been concealed through technological means;

      The change here is that a magistrate can now issue a warrant to remotely access or size electronic information outside their district if the location of that equipment is concealed. What's changed is that a magistrate can now issue a warrant for something outside their district rather than only for devices within their district; but only if the location of the device is concealed.

      • by mark-t ( 151149 )
        How do they define "concealed"? Serious question... because if the definition is overbroad, it would include computers that are simply hidden from view, or even computers on wifi or wireless connnections because there are no cables that can be traced to where the device physically might be.
        • Well, it does say "concealed through technological means" which presumably would be contrasted with "concealed through physical means", i.e. hiding it in your closet. I wouldn't say wifi would qualify, because the range is short enough that if you know the location of the router, the location of the device would be very near (and in which case the district of jurisdiction of the device would be known to be that of the router).

        • How do they define "concealed"? Serious question... because if the definition is overbroad...

          If the application of a statute, rule, or legal principle is over-broad then that is one the reasons that the same Supreme Court agrees to hear challenges. So there is no worry there. The same people that made this change will be the ones that it goes back if it is misapplied.

          If it was Congress making the change, then there would be more cause for concern; the application could be over-broad, but it could be unclear to the Court that it was broader than Congress intended. That happens all the time. Here, an

      • by bigpat ( 158134 )

        What's changed is that a magistrate can now issue a warrant for something outside their district rather than only for devices within their district; but only if the location of the device is concealed.

        This doesn't seem at all like a radical change in the law, but the issue is the clear potential for abuse of the law. What would constitute evidence that the location of the device is being concealed? Do they need to do a trace route and work with the telecom to determine the device's physical location and stop and seek another warrant when they determine that the suspect device is outside the court's jurisdiction? Or does "The Internet" now count as concealment (with references to Tor being a red herri

        • by tranquilidad ( 1994300 ) on Friday April 29, 2016 @10:29AM (#52013225)

          Here's the problem they want to solve:

          If a device is thought to contain evidence and a judge is convinced to issue a warrant, which, admittedly isn't necessarily a high bar, then the only judge that can issue a warrant today is a judge with jurisdiction over whatever geographic area in which the device is located. If the location of the device is unknown then no judge can issue a warrant.

          If the device is going to be physically seized then the location will, ultimately, need to be known.

          However, if the device is going to be accessed remotely then the location doesn't need to be known but a warrant is still needed.

          I do see a bigger problem if the device is located outside the jurisdiction of the United States. What is the issue of a U.S. judge issuing a warrant that gathers information from a device located in Germany; especially if access to that data violates German law?

          So, what's the balance? If the location of the device is unknown does that mean that no judge may ever issue a warrant to gather information? Or, does hiding a device open the device to warrants from any jurisdiction?

          • by R33P ( 4452881 )
            Also, how would the LEOs know they were remotely accessing the desired device? Without physical access (and no other things attached), how can you be sure you haven't found 'virtually planted' evidence?
          • It is narrower than that. Right now, a District Judge can already grant the warrant regardless of location, but magistrates (who are appointed by a different system and don't have full powers) can only grant warrants within their district.

            If it is outside the US, a warrant has to be sought from the jurisdiction it is in. This doesn't try to address that. This simply solves the problem that District Judges have different jurisdictional boundaries than the magistrates below them, and there are narrow cases wh

      • by Tablizer ( 95088 )

        the district where the media or information is located has been concealed...

        Could Tor get around that clause by indicating the server is "somewhere in Nebraska"?

    • by Plus1Entropy ( 4481723 ) on Friday April 29, 2016 @09:46AM (#52012795)

      What is innocent until proven guilty?

      Warrants are usually issued before someone is found guilty anyway.

    • The SCOTUS is corrupt plane and simple! We can all jar this one to death, but the simple fact is that the SCOTUS has routinely violated the US Constitution on quite a few issues for their own liking. Come on folks...the pols and courts are corrupted just like the Fed gov't. Check and balances....Ha!
    • I suspect this impacts way more than just Tor users. Carrier grade NAT's pretty much do the same job (Anonymize IP address). Wireless devices often end up having Nat'd IP addresses scattered throughout the USA. My laptop&cell phone has used Nat'd using IP addr's for New york, NJ, Oregon, Chicago, Texas, Orlando, Miami, etc. None of which are within 50 miles of my actual location.

      That makes my laptop tethered through my cell phone fair game. So this kinda suck's, but it makes sense because of the the

    • by Wiseleo ( 15092 )

      I don't know what you are reading, but the actual order http://www.supremecourt.gov/or... [supremecourt.gov] says:

      Effective December 2016 with no use of word "immediate".
      The order does not mention tor or anonymity.

  • This is not unreasonable. The government should not be required to get 51 warrants, simply because they don't know which state or federal territory a criminal is in. Merely getting one warrant is appropriate.

    This is about principle, not merely handcuffing the government.

    • by TheGratefulNet ( 143330 ) on Friday April 29, 2016 @09:31AM (#52012679)

      y'all are missing the point.

      the fact that REMOTELY BREAKING INTO OUR MACHINES has been allowed by the courts; that's the real news, here.

      everyone government seems to do it, too. I remember reading about malware that the german government uses to break into their citizen's computers.

      its amazing that we have given up due process and we have fallen prey to 'ends justifies the means'. this is not, at all, what america used to stand for.

      but as I said, this is not really just about the US. all authorities seem to think anything's fair game as long as they get their man. and conservative-driven countries (like the US, currently) have zero problems giving authorities any damned thing they ask for, as long as they keep us in perpetual fear and promise to keep the Bad Guys(tm) away.

      • by mark-t ( 151149 )
        It might be allowed by the courts, but that doesn't mean that a person has to allow it to happen to their own computer.... this law does not appear to forbid people from securing their own home networks against intrusion from anyone they did not authorize.
        • time to dust off my old DECstation and see if mosaic still runs on it ;)

          any zero-days that existed for ultrix are probably not even around anymore; and the company that made that computer is not even around anymore.

          (half seriously, though, I do wonder if those that want the most security would tend to run the most unusual hardware and non-standard os's. send my ultrix box a windows .exe file as a trojan? good luck with that!)

          • by mark-t ( 151149 )
            Or you could just put your regular home computers behind a properly secured hardware firewall. What self-respecting computer knowledgeable person does not already do this?
            • don't be an idiot.

              firewalls are not very strong; when a TLA that has more money than god wants to get in.

              • by mark-t ( 151149 )
                Please note that I did qualify the firewall as being "properly secured". This is possible to do while still having connectivity such that only physical access can bypass the security. Worst case scenario: issue "deny all" on incoming connection requests.
                • I don't think you understand how back doors work...

                  • by mark-t ( 151149 )
                    And I don't think you understand what "properly secured" means if you think that a back door would still be there.
                    • BHAHAHAHA at you thinking you have it properly secured if *network vendor* is required to put in a backdoor.

                    • by mark-t ( 151149 )
                      Afaik, the network vendor is *NOT* required to put in a back door... That's my whole point... that this proposal does not prevent someone from securing their own network against intrusion.
                    • you are forgetting the other half of the vector attack direction.

                      from within.

                      silly firewalls are USELESS for this. when you trick a user (happens every few minutes. THERE, one just got tricked now, I bet!) into taking a payload and they gladly click on the dancing pigs, the .exe file (etc etc) is now inside their network.

                      tell me, mr. firewall wiz, how does the fw protect against user stupidity in clicking on dancing pigs?

                      see my point?

                      there are MANY ways to poison your system. firewalls stop a tiny fracti

                    • by mark-t ( 151149 )
                      "From within" requires physical access... tricking a user requires that they are gullible. This proposal doesn't entitle law enforcement to the former, and people who are competent network managers are not prone to the latter. My point is that this proposal does not prohibit someone from securing their own networks, and any difficulty that law enforcement might have trying to hack in, however lawfully they are permitted to attempt to do so, may be entirely fruitless. The end user still possesses entire
              • rig things so that if the gateway/router falls over a shaped charge blows the connect "they" could have more money than the Atlantian Greek and Roman Pantheons and still not get any data.

            • A firewall is irrelevant. Most of the malware used is not pushed remotely through a backdoor, rather by tricking the user into installing it, phishing, or through web sites that exploit holes in the machine being used. Your firewall will not do anything to stop this. Unless you are running some sort of proxy that scans for malware (assuming it is not a zero day or undisclosed and unpatched vulnerability). Most are not.

              • by mark-t ( 151149 )

                "Tricking" the user plays on a user's gullibility... a trait that is not generally widely held among people who are actually competent with computers and networks.

                My point is that if a person is smart enough to have defenses against this, then they are probably also not dumb enough to be tricked by phishing attempts, and any browser they run will be in an isolated enough sandbox that any vulnerabilities which might exist in it will have very limited effects outside of itself, if any.

      • by Plus1Entropy ( 4481723 ) on Friday April 29, 2016 @09:50AM (#52012853)

        I think remotely breaking into machines (if a warrant was issued) was already allowed before this. This only changed how the warrants are issued, not the power granted by the warrants themselves.

  • by xxxJonBoyxxx ( 565205 ) on Friday April 29, 2016 @09:17AM (#52012575)
    >> "FBI sneaks radical expansion of power through courts, avoiding public debate."

    This is the same route that everyone is pursuing today. Witness the recent changes in gay marriage (court decision), our new national health care "tax" (court decision), political speech contribution limits (court decision) and more.

    It's getting to the point where "public debate" leading to "legislation" or "constitutional amendments" (i.e., changes in the law) almost seems like a thing of the past. Instead, you just stack the highest court you can find with like-minded people, then shove court cases involving your favorite issues at them until they issue the ruling you want - no messy democracy needed!
    • by whoever57 ( 658626 ) on Friday April 29, 2016 @09:36AM (#52012713) Journal

      our new national health care "tax" (court decision),

      Yes, of course, because this tax was not part of a huge bill that Congress approved and the President signed.

      You may have a point with your other examples, but this "tax" was part of the Affordable Care Act and your attempt to claim that it wasn't shows that you let your biases get in the way of rational analysis.

      • Show me where the word "tax" appears in the AMA. :)
      • My beef with the ruling is that it contradicts itself. There were 3 parts, the first was to determine standing and that hinged on if the thing that you got if you didn't have insurance was a tax or a fine. The second part was about taking away medicare (or was it medicaid) money from the states. The 3rd part was if the things in the first ruling was and by extension the health insurance mandate was constitutional. On the first issue the court found that it was not a tax and by extension the plaintiffs had s
  • "Unbelievable"

    What have we done without it?

  • Terrible summary (Score:5, Informative)

    by Anonymous Coward on Friday April 29, 2016 @09:23AM (#52012619)

    Let's be clear what the rule change actually does. It allows a judge to issue a search warrant affecting computers outside his or her jurisdiction.

    The rule only allows an expansion in the geographic scope of warrants. It is NOT an order permitting the hacking of anyone using anonymity. That's a very misleading statement.

    I'm actually not sure this is a bad thing, either. Instead of seeking warrants in each jurisdiction, it allows law enforcement to seek a single warrant that covers all jurisdictions. One of the biggest issues with government surveillance is that the courts just don't have the resources to properly scrutinize all the requests for warrants they get. For example, the FISA court can't properly review all the requests they get, so in some ways they rely on the NSA to police themselves. If there are fewer requests for warrants it allows, at least in principle, more thorough scrutiny of each request.

  • How do they do this? (Score:4, Interesting)

    by Jiro ( 131519 ) on Friday April 29, 2016 @09:23AM (#52012621)

    Could someone please explain to me exactly what the Supreme Court does? I didn't even know that they do this kind of thing. I thought they heard cases and made rulings on the cases.

    Reading the Wikipedia article on the US Supreme Court doesn't help, either. It's all about hearing cases.

    • >> Reading the Wikipedia article

      Lemme stop you right there. Please try this instead:
      http://www.uscourts.gov/rules-policies/current-rules-practice-procedure

      Rules of Criminal Procedure

      The Federal Rules of Criminal Procedure govern criminal proceedings and prosecutions in the U.S. district courts, the courts of appeals, and the Supreme Court. Their purpose is to "provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to elim
    • Could someone please explain to me exactly what the Supreme Court does? I didn't even know that they do this kind of thing. I thought they heard cases and made rulings on the cases.

      The title here is somewhat misleading -- SCOTUS didn't really do anything here, other than to be a stage in a multistage approval process that ultimately ends with Congressional approval.

      You can easily find this information with a search engine, but basically the rules of court procedure are approved through a long process. There is a standing committee consisting of the Chief Justice of SCOTUS, the chief justices of all circuits in the U.S., and representative judges of the district courts. I believe t

      • I should also clarify that, as I understand it, Congress has passed previous legislation that automatically allows rules changes to go into effect after a certain time unless Congress acts further. This is a common procedure for various departments within the federal government: they are required by law to notify Congress of changes in policies, but unless Congress objects, the proposed administrative changes go into effect after a period. (Otherwise, we'd have Congress micromanaging all parts of the gove

  • The important bit (Score:5, Insightful)

    by LeadSongDog ( 1120683 ) on Friday April 29, 2016 @09:27AM (#52012639)
    ... is "the officer must make reasonable efforts to serve a copy of the warrant and receipt on the person whose property was searched or who possessed the information that was seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person." So after they search your machine and identify you, they still have to let you know they did it. If it happens too often, voters might start to care. Of course, the cameras everywhere one turns don't seem to bother voters much, so perhaps that's a bit optimistic.
  • We have a full on police state, our "democracy" is a farce as demonstrated by super delagates and vast political corruption, and the middle class is a sliver of the population versus what it used to be. My kids will have it worse as things have been steadily declining for decades. We are past due for a major change / revolution. This monopoly game is about over strongly and suspect that in my lifetime I will get to see the next game. Hopefully the transition is relatively peaceful.
    • more and more people are sick and tired of this shit.

      maybe a quick (and yes, painful) struggle and change is what we need.

      the slow change is killing us, as a nation. a violent revolution is not what anyone WANTS, but perhaps its what we really need right now.

      people are feeling desparate and deparate people are not rational thinkers. when they feel they have nothing left to lose, all hell will break loose.

      its really just a matter of time. we're on track for 'something'; what that is, no one really knows.

  • by Dr. Evil ( 3501 ) on Friday April 29, 2016 @09:47AM (#52012821)

    This sounds like a direct response to the recent ruling covered here a few days ago:

    https://yro.slashdot.org/story/16/04/21/1718230/in-a-first-judge-throws-out-evidence-obtained-from-fbi-malware [slashdot.org]

    "Based on the foregoing analysis, the Court concludes that the NIT warrant was issued without jurisdiction and thus was void ab initio,"

    And now:

    "Previously, under the federal rules on criminal procedures, a magistrate judge couldn't approve a warrant request to search a computer remotely if the investigator didn't know where the computer was -- because it might be outside his or her jurisdiction."

    Would be nice to hear from a lawyer if the previous ruling was taken to the supreme court and amended based on... no clue, but some legal reason.

    • by Anonymous Coward

      IANAL, but it's not really necessary to be one to understand this issue, which has been grossly distorted by The Intercept and privacy special interest groups. The FBI did not sneakily get the Supreme Court make the rule changes. In fact, all the Supreme Court did is submit a propose rule amendments to for Congress to vote on. Public debate on the rule change will take place when issue comes before the people's representatives, (aka Congress) .

      http://www.uscourts.gov/rules-policies/pending-rules-amendments

      Any change to the federal rules must be designed to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay.

      The process for promulgating an amendment to a rule or form involves several levels of consideration and approval, the first of which is consideration and approval by the appropriate advisory committee and then the Committee on Rules of Practice and Procedure. Following approval by the Committee on Rules of Practice and Procedure, proposed amendments must be considered and approved by the Judicial Conference, the Supreme Court, and then Congress.

      A

  • A fun experiment might be to use just a dumb terminal and have all the processing out on an Amazon AWS server somewhere. I wonder if the FBI would have the guts to bust into one of their server farms and rip out some of the boxes/blades/hard drives.
    • Not really, all they would do is ask Amazon where they need to get a warrant for, and then serve Amazon with said warrant, which Amazon will happily comply with.

  • Unacceptable.
  • by ThatsNotPudding ( 1045640 ) on Friday April 29, 2016 @12:19PM (#52014035)
    FBI HQ is still named after that tyrant J Edgar Hoover, who gathered so much power, even Presidents feared him.

    The FBI hasn't changed; they will never change.
  • when things like this can go through with no public debate, can we call what we have in the USA a democracy any more? Sounds very Nazi/Gestapo like indeed:Group/agency just secretly arranges expandability of it's own powers with no oversight, no limits of scope, and no accountability. Sounds more like fasicism to me. At least China and Russia are open about it. We tell the world we are a democracy, and do the stuff we condemned the Germans, Chinese and Russians for years ago. When will the US public realize
  • Is TOR not anonymous anymore? How they be found and investigated if they are using TOR and could be anywhere in the world?

    • by gweihir ( 88907 )

      You can serve malware to a TOR user that has neglected to update the software relatively cheaply and compromise the TOR-browser. For much more money, you can do this with an unknown vulnerability to an updated browser. In both cases the target machine has been compromised and the attacker could have placed arbitrary data on it. That is why in a sane legal system, you cannot obtain evidence this way and whatever is on the target machine is inadmissible.

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