U.S. courts should join Russia in saying "nyet" to the FBI's lawless international hack attacks.
Even though the agents felt a sense of urgency at a potential loss of evidence, this does not justify breaking into Russian computers any more than the FBI would be entitled to sneak into the country and kick in the Russians' doors.
That's what I thought of when the Russian Federal Security Service (FSB) recently announced their plans to charge an FBI agent with hacking -- a crime that the agent committed while investigating Russian hackers.
In November 2000, Vasily Gorshkov, 26, and Alexei Ivanov, 21, hackers from Chelyabinsk, Russia, broke into various U.S. computers, stole credit card information and tried to extort money from U.S. individuals and companies. FBI agents responded by inviting the Russian pair to interview with fictitious Seattle company "Invita" and demonstrate their prowess at hacking.
So far so good. But when the hackers remotely logged on to their computers in Russia from the "Invita" offices, the FBI secretly sniffed their passwords. Then FBI agents used the stolen passwords to log into the Russians' computer themselves, and download their files. Armed with a subsequent warrant, they read the purloined documents and arrested the pair based on the contents.
For this, they were awarded the FBI's Director's award for excellence as the first to "utilize the technique of extra-territorial seizure" which has now been incorporated into attorney general John Ashcroft's official guidelines for law enforcement personnel.
At Goshkov's trial, a U.S. court held that the "sniffing" of the user name and password was appropriate because the hackers had no "expectation of privacy" in the "Invita" computer system and that no warrant was required prior to downloading the files from the Russian computer "because they are the property of a non-resident and located outside the United States" and because "the agents had good reason to fear that if they did not copy the data, [the] defendant's co-conspirators would destroy the evidence or make it unavailable."
That was a bad decision, which essentially permits a broad and unwarranted intrusion into anyone's privacy.
Imagine logging into an ISP account through your corporate or university network, or using a web-based e-mail service while at work or school. The court's ruling would permit the employer to "sniff" your e-mail or Internet passwords (or, for that matter, banking or medical record passwords), and later use that data to read your files, because you had no "expectation of privacy" when entering the passwords.
Common sense tells us that the fact that the hackers used an FBI-provided computer to log into their Russian computer does not translate into permission to steal and later utilize their passwords to break in. A diminished expectation of privacy while using a networked computer should not translate into a relinquishment of privacy on anything that can later be derived from the stolen data.
Above the Law?
The Washington federal court also held that the copying of the files from the Russian computer to the United States didn't constitute a "seizure" and therefore did not require a warrant, because, naturally, the files remained on the Russian computer, and therefore there was no "interference" with the Russians' "posessory interest." This interpretation of "seizure" is unduly narrow, and completely inconsistent with court decisions in U.S. computer crime cases, which treat the downloading of copies of files as theft -- apparently only when it's not an FBI agent doing the stealing.
The district judge in Washington also rejected defense arguments that the FBI's actions were unreasonable and illegal because they failed to comply with Russian law -- ruling instead that that Russian law did not apply to the FBI's hacking and that the agents "sufficiently complied with the relevant portions of the Criminal Process Code of Russia."
Unfortunately, no one asked Russia.
U.S. law permits law enforcement agencies to engage in such trespass, specifically exempting any authorized law enforcement or intelligence actions from the federal computer crime laws. However, Russian computer crime laws do not provide the FBI with similar exemptions, and the Russians are now quite properly charging one of the FBI agents with criminal trespass into Russian computers.
You see, the problem with both the FBI's actions and the U.S. court's ruling is its failure to take into account the right of the Russian people to control actions taking place within their country.
Even though the FBI agents felt a sense of urgency at a potential loss of evidence, and the Russian government may have been less than responsive in the past, these facts do not justify as a matter of law breaking into Russian computers, any more than the FBI would be entitled to sneak into the country and kick in the Russians' doors. While it is commendable that the FBI obtained a warrant before reading the purloined documents (and indeed, no U.S. court could have issued a warrant permitting the initial seizure of the documents in Russia), it was for the Russian criminal justice system to determine the rights of its citizens in their computer systems, and not the right of the U.S. to act unilaterally.
Gorshkov's Seattle lawyer has announced that this will be his position on appeal, and I believe he should prevail.
Respect for the law -- even laws which slow us down and frustrate our administration of justice -- should be paramount. Breaking into the Russian computers because we were frustrated at Russian inaction is the type of self-help the law disfavors. As Russian First Deputy Communications Minister Andrei Korotkov explained, "Our position is unambiguous: Crime must be rooted out, but it must not mean that any means can be used for doing so." Perhaps we should remember that the word petard has another meaning -- from the French word for "to break wind." It just smells bad.