Martin & Kent, L.L.C. Martin & Kent, L.L.C.

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Report details ways to address law enforcement hacking

Much has been written about massive government surveillance programs and how the civil rights of residents of Illinois and around the country can be protected in the information age. Evidence has emerged that federal law enforcement agencies have used single warrants to monitor the internet activity of thousands of people, and the American Civil Liberties Union, the Electronic Frontier Foundation and the National Association of Criminal Defense Lawyers released a report on March 30 outlining strategies that can be used to combat this kind of law enforcement hacking.

A change in the Federal Rules of Criminal Procedure allows government agents to remotely search hundreds or even thousands of computers and monitor the online activities of their owners after obtaining a single search warrant. Civil rights advocates are particularly alarmed because the new rule does not even require judges to be informed of who investigators will be watching or where they live.

In a 2016 child pornography case, investigators seized control of a website accused of hosting such material and used it to install malware on the computers of about 9,000 of the site's visitors. The data provided by this software is said to have led to the arrest of hundreds of suspects. According to the EFF, this kind of hacking violates protections guaranteed by the U.S. Constitution and any evidence gathered by it should be suppressed.

Experienced criminal defense attorneys will likely stay abreast of developments in law enforcement practices, and they could suspect hacking when their clients have been implicated based on their internet activities. In these situations, they may pay particular attention to probable cause issues and how the authorities became interested in their clients. If their suspicions persist, criminal defense attorneys could make additional discovery requests to gather more information and have their clients' computers inspected by malware experts.

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