Judge Rejects FBI Attempt to Use Spyware to Infiltrate Unknown Suspect's Computer

The Citizen's Guide to the Future
April 25 2013 12:11 PM

Judge Rejects FBI Attempt to Use Spyware to Infiltrate Unknown Suspect's Computer

The FBI wants to turn hacker tools against computer criminals

Photo by Scott Olson/Getty Images

Pursuing criminal hacking groups is high on the FBI’s list of priorities—but the bureau is adopting some hacking techniques of its own. And a Texas judge isn’t happy about it.

Ryan Gallagher Ryan Gallagher

Ryan Gallagher is a journalist who reports on surveillance, security, and civil liberties.

On Monday, a judge denied an FBI request to install a spy Trojan on a computer in an unknown location in order to track down a suspected fraudster. The order rejecting the request revealed that the FBI wanted to use the surveillance tool to covertly infiltrate the computer and take photographs of its user through his or her webcam. The plan also included recording Internet activity, user location, email contents, chat messaging logs, photographs, documents, and passwords.


As the Wall Street Journal reported, Houston magistrate Judge Stephen Smith said that he could not approve the “extremely intrusive” tactic because the FBI did not know the location or identity of the suspect and could not guarantee the spy software would not end up targeting innocents. Smith wrote in a 13-page memorandum:

What if the Target Computer is located in a public library, an Internet café, or a workplace accessible to others? What if the computer is used by family or friends uninvolved in the illegal scheme? What if the counterfeit email address is used for legitimate reasons by others unconnected to the criminal conspiracy? What if the email address is accessed by more than one computer, or by a cell phone and other digital devices? There may well be sufficient answers to these questions, but the Government’s application does not supply them.

According to court documents, the FBI wanted to use the software to identify a person responsible for allegedly violating computer security laws and committing federal bank fraud and identity theft. A criminal is said to have infiltrated the email of a Texas man and later tried to steal a “sizable” amount of money from his bank by transferring it to a foreign account. But investigators apparently admitted that they did not know the physical location of the suspect, creating a major legal roadblock in gaining surveillance approval. There are rules in place that put territorial limits on magistrate judges’ authority, so that they can issue warrants only for their own districts—in this case, the Southern District of Texas. Smith made it clear in his refusal that he was particularly uncomfortable authorizing the feds to “hack a computer” that could have been based anywhere in the world.

Perhaps what is most interesting is the level of detail the memorandum discloses about the surveillance technology at the FBI’s disposal. Back in 2007, the bureau was revealed to be using a spyware that could infect computers and gather IP addresses, the last visited website address, and a range of other metadata. But the spy Trojan disclosed in the Houston documents is far more advanced, capable of copying content and turning a person’s webcam effectively into a surveillance camera. According to Smith:

[T]he Government’s data extraction software will activate the Target Computer’s built-in-camera and snap photographs sufficient to identify the persons using the computer. The Government couches its description of this technique in terms of “photo monitoring,” as opposed to video surveillance, but this is a distinction without a difference. In between snapping photographs, the Government will have real time access to the camera’s video feed.

Sophisticated spy Trojans like the one described above are sold by companies that sell only to governments and law enforcement agencies—like England’s Gamma Group, which has developed a line of controversial “FinFisher” Trojan tools. It is possible that the FBI could have developed its own Trojan, but equally it may have procured the technology from a private company. Last month, I asked the feds whether they had ever purchased Gamma’s spyware, following a report that FinFisher servers had been detected in the United States. However, a spokesman for the bureau said that as a matter of policy it would not discuss “specific law enforcement tactics, techniques, or procedures, and we likewise would not be able to confirm specific products or services that the FBI may or may not purchase or use.”

Future Tense is a partnership of SlateNew America, and Arizona State University.



More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

Why Do Some People See the Virgin Mary in Grilled Cheese?

The science that explains the human need to find meaning in coincidences.


Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

What to Do if You Literally Get a Bug in Your Ear

  News & Politics
Sept. 17 2014 10:25 AM An Alaskan Nationalist on the Scottish Independence Movement
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
Brow Beat
Sept. 17 2014 9:03 AM My Father Was James Brown. I Watched Him Beat My Mother. And Then I Found Myself With Someone Like Dad.
Future Tense
Sept. 17 2014 8:27 AM Only Science Fiction Can Save Us! What sci-fi gets wrong about income inequality.
  Health & Science
Sept. 17 2014 10:20 AM White People Are Fine With Laws That Harm Blacks The futility of fighting criminal justice racism with statistics.
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.