Government hacking

The United States government hacks computer systems for law enforcement purposes. As encryption and anonymization tools become more prevalent, the government will foreseeably increase its resort to malware. Law enforcement hacking poses novel puzzles for criminal procedure. Courts are just beginning to piece through the doctrine, and scholarship is scant. This Article provides the first comprehensive examination of how federal law regulates government malware. Part I of the Article considers whether the Fourth Amendment regulates law enforcement hacking. This issue has sharply divided district courts because, unlike a conventional computer search, hacking usually does not involve physical contact with a suspect’s property. The Article provides a technical framework for analyzing government malware, then argues that a faithful application of Fourth Amendment principles compels the conclusion that government hacking is inherently a search. Part II analyzes the positive law that governs law enforcement hacking, answering fundamental criminal procedure questions about initiating a search, establishing probable cause and particularity, venue, search duration, and notice. A review of unsealed court filings demonstrates that the government has a spotty compliance record with these procedural requirements. The Article also argues for reinvigorating super-warrant procedures and applying them to law enforcement hacking. Finally, Part III uses government malware to illuminate longstanding scholarly debates about Fourth Amendment law and the structure of surveillance regulation. Law enforcement hacking sheds new light on the interbranch dynamics of surveillance, equilibrium adjustment theories for calibrating Fourth Amendment law, and the interplay between statutory and constitutional privacy protections.