I’m thinking slippery slope about like an ice rink tilted 45 degrees. Don’t misunderstand me- With properly educated judicial oversight these tools are useful. Without that the FBI has demonstrated over and over it will exploit any but the most diligent oversight powers.
The ACLU’s Soghoian says a child porn sting is probably the best possible use of the FBI’s drive-by download capability. “It’s tough to imagine a legitimate excuse to visit one of those forums: the mere act of looking at child pornography is a crime,” he notes. His primary worry is that Operation Torpedo is the first step to the FBI using the tactic much more broadly, skipping any public debate over the possible unintended consequences. “You could easily imagine them using this same technology on everyone who visits a jihadi forum, for example,” he says. “And there are lots of legitimate reasons for someone to visit a jihadi forum: research, journalism, lawyers defending a case. ACLU attorneys read Inspire Magazine, not because we are particularly interested in the material, but we need to cite stuff in briefs.”
Soghoian is also concerned that the judges who considered NIT applications don’t fully understand that they’re being asked to permit the use of hacking software that takes advantage of software vulnerabilities to breach a machine’s defenses. The Operation Torpedo search warrant application, for example, never uses the words “hack,” “malware,” or “exploit.” Instead, the NIT comes across as something you’d be happy to spend 99 cents for in the App Store. “Under the NIT authorized by this warrant, the website would augment [its] content with some additional computer instructions,” the warrant reads.
From the perspective of experts in computer security and privacy, the NIT is malware, pure and simple. That was demonstrated last August, when, perhaps buoyed by the success of Operation Torpedo, the FBI launched a second deployment of the NIT targeting more Tor hidden services.