The FBI is facing accusations that malware it deployed while running Operation Playpen, a sting that infiltrated and maintained a dark web child pornography website for two weeks and eventually led to more than 100 arrests, was illegal. But the agency swears that using malware was good because, well, the FBI had good intentions.
Some judges have actually ruled to throw out evidence obtained by the malware the FBI used on the basis that it did not have the proper warrants. (The DOJ and FBI just had a major breakthrough with the US Supreme Court in modifying Rule 41, giving them expansive new hacking powers, but we’ll get to that in a second.) According to a legal brief filed by they FBI, “A reasonable person person or society would not interpret the actions taken by a law enforcement officer pursuant to a court order to be malicious.” Hmm.
Obviously, the FBI is not pleased with any suggestion that what the agency may have done is wrong or that its malware wasn’t above board. In fact, the FBI is saying, well, it couldn’t possibly be malware because FBI agents are the good guys! Hmmmmmmmmm.
If you didn’t know, malware is just short for malicious software. Now, the FBI is trying to dispute what it really means. So let’s dust off out trusty Webster’s dictionary and see what it has to say:
Well, uh, sorry FBI! While we don’t know much about how exactly that malware works — the agency has fought tooth and nail to keep every little detail under wraps — it definitely interfered with a computer’s normal functioning.
But about that Rule 41 stuff. After years of petitioning the Supreme Court, the FBI and DOJ were granted their wish of broadly expanding Rule 41 of the US Federal Criminal Procedure. The change allows the FBI to get a warrant to hack any computer, even if it does’t know where the computer’s user is. Security and privacy advocates fear this could go very, very badly.
There’s still hope. Senator Ron Wyden is currently leading a charge to have the changes to Rule 41 reverse before they go into effect in December. Malware is malware, no matter who is using it. While the FBI won’t reveal any details about how it works, the agency is still asking the people to trust what it does, and that sets a dangerous precedent. No matter who is deploying it — be it a good guy or a bad one — malware is destructive and malicious.