News Release ~ 03/30/2017

New Report Offers Guide for Defense Attorneys to Challenge Secretive Government Hacking

Washington, DC (Mar. 30, 2017) — A report released today sets out key legal arguments and strategies for challenging evidence seized by government-installed computer malware as a violation of the Fourth Amendment and federal law.

The report, "Challenging Government Hacking in Criminal Cases," was written by attorneys from the American Civil Liberties Union, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers.

Over the past several years, the government has increasingly turned to hacking and malware as an investigative technique. The Federal Bureau of Investigation has begun deploying software designed to infiltrate and control, disable, or surveil a computer's use and activity. This kind of widespread and secretive hacking by the government is controversial and of questionable constitutionality.

"Our goal is to ensure that the government's uses of malware don't violate the Fourth Amendment. That means that hacking always requires a warrant based on individual suspicion," said ACLU attorney Vera Eidelman, one of the authors of the report. 

The report assesses recent court decisions evaluating the government's use of the controversial hacking technique and makes recommendations for the most promising avenues to have unconstitutionally obtained evidence suppressed. "Our Fourth Amendment right to be free from unreasonable searches applies regardless of the technology involved in a search," said EFF attorney Mark Rumold. "However, we know that the law may be slow to catch up, particularly when the government goes to great lengths to hide details about its use of new surveillance techniques."

A key audience for the report is the nation's network of criminal defense lawyers, who will be the first to learn of court evidence obtained from government hacking operations.

"We're proud to release this report to ensure the defense community is educated about these highly intrusive surveillance techniques and is fully armed for a zealous defense against potentially unlawful hacking," said Jumana Musa of the NACDL.

The report is at: http://nacdl.org/Malware-Guide/.

Contact:

Josh Bell, ACLU, media@aclu.org
Rebecca Jeschke, EFF, press@eff.org
Ivan Dominguez, NACDL, idominguez@nacdl.org 

About the authors:

AMERICAN CIVIL LIBERTIES UNION (ACLU)  

For nearly 100 years, the ACLU has been our nation's guardian of liberty, working in courts, legislatures, and communities to defend and preserve the individual rights and liberties that the Constitution and the laws of the United States guarantee everyone in this country.

The ACLU takes up the toughest civil liberties cases and issues to defend all people from government abuse and overreach, and works to establish new privacy protections for our digital age of widespread government surveillance.

With more than 2 million members, activists, and supporters, the ACLU is a nationwide organization that fights tirelessly in all 50 states, Puerto Rico, and Washington, D.C., for the principle that every individual's rights must be protected equally under the law, regardless of race, religion, gender, sexual orientation, disability, or national origin.

ELECTRONIC FRONTIER FOUNDATION (EFF) 

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. We work to ensure that rights and freedoms are enhanced and protected as our use of technology grows.

With roughly 37,000 active donors, EFF represents technology users' interests in court cases and broader policy debates, including the debate about law enforcement "hacking." EFF has worked to educate criminal defense attorneys and the courts about the threats to privacy posed by this surveillance technique, including filing amicus briefs in seven cases arising from the Playpen investigation. 

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (NACDL) 

The National Association of Criminal Defense Lawyers is the preeminent organization in the United States advancing the goal of the criminal defense bar to ensure justice and due process for persons charged with a crime or wrongdoing. NACDL's core mission is to: Ensure justice and due process for persons accused of crime … Foster the integrity, independence and expertise of the criminal defense profession … Promote the proper and fair administration of criminal justice.

Founded in 1958, NACDL has a rich history of promoting education and reform through steadfast support of America's criminal defense bar, amicus curiae advocacy, and myriad projects designed to safeguard due process rights and promote a rational and humane criminal justice system. NACDL's many thousands of direct members — and 90 state, local and international affiliate organizations totaling up to 40,000 members — include private criminal defense lawyers, public defenders, active U.S. military defense counsel, and law professors committed to preserving fairness in America's criminal justice system. Representing thousands of criminal defense attorneys who know firsthand the inadequacies of the current system, NACDL is recognized domestically and internationally for its expertise on criminal justice policies and best practices.

*Students in the Technology Law and Policy Clinic at NYU Law School, including David Krone and Charles Low, contributed to this report. 

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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