A Federal Court in the US State of Virginia has ruled that criminal defendants have no “reasonable expectation of privacy” in a ruling which has stunned privacy campaigners.
The ruling emerged from a relatively simple case in which the FBI had hacked a child pornography site on the dark web called PlayPen. They had seized the server, but continued to run the site and inserted malware (or as they prefer to call it, NIT – Network Investigative Technique software) onto it which allowed them to identify the IP Addresses of anyone who accessed the site and downloaded content from it.
To do this, they were required to get a warrant, and whilst there are a few questions about the way they went about this, they did at least do so. But in future, they may not have to.
Because the defendant in the case challenge the scope of this warrant in the Virginia Court. And the Judge has ruled that not only was this warrant fine, but it was also not necessary for the FBI to have got it in the first place.
The crux of the logic behind the decision seems to be that everyone knows that the internet is insecure, so no-one can expect things to be private there. The judgement said “it seems unreasonable to think that a computer connected to the Web is immune from invasion. Indeed, the opposite holds true: in today’s digital world, it appears to be a virtual certainty that computers accessing the Internet can – and eventually will – be hacked.”
It even goes on to argue that even having password protected files still offers no reasonable expectation of privacy. The conclusion it reaches is that “FBI agents who exploit a vulnerability in an online network [with our without a warrant] do not violate the Fourth Amendment.”
This is essentially giving the FBI carte blanche to hack into the online accounts of US citizens at will, and with no requirement to seek a warrant or be subject to any other kind of judicial oversight. And they could do this to anyway, without any probable cause or even the slightest suspicion that you might be up to no good.
Campaign groups such as the Electronic Frontier Foundation, which VPNCompare.co.uk supports, are understandably enraged about this low-level court ruling, which threatens the online privacy of every US citizen. They believe such rulings are the result of Judges who do not understand the technology they are being asked to rule on and are faced with an unsympathetic defendant. They further believe there is little comprehensive of the impact precedents such as this case can have on the wider population.
Few people have sympathy for those who spend their time trawling the internet looking for child pornography. But in a democratic society such as the USA, those people have the right to live under the rules laid out by the US Constitution just like everyone else.
The idea that actions such as those taken by the FBI, in this case, are not a breach of the fourth amendment is, as the EFF has said, “dangerously flawed”.
And this is just the latest in a long line of court case rulings which are slowly but surely undermining this vital component of the Constitution. Such rulings are a big factor in more and more people signing up with VPNs and other services which protect their privacy come what may. When the law cannot defend people, they take steps to defend themselves.
As a number of commentators have already asked, could it be that a Federal Court in the state of Virginia is where the final nail is finally driven into the coffin of individual privacy in the USA?