Challenging Government Hacking in Criminal Cases

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. The ACLU created a guide, to which NACDL and EFF contributed, that sets out key legal arguments and strategies for challenging evidence seized by government-installed computer malware. [Released March 2017]

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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. The report also looks forward, addressing change to Rule 41 of the Federal Rules of Criminal Procedure that have given the government wide latitude to use hacking in their criminal investigations. 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.

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