Privacy and national security interests are notoriously tricky to balance. Lean too far one way, and you lose an important tool in preventing and detecting crime; lean too far the other way, and you are depriving Americans of their liberty through persistent government intrusion and observation. This balancing act has been an especially hot topic given recent revelations about the National Security Agency’s surveillance and data-gathering networks. While attention has been focused on the NSA and the mass surveillance disclosures that took place earlier this summer, a particularly startling revelation about the FBI’s actions has flown largely under the radar.
A recent New York Times article revealed that the FBI has been gathering information from suspects by remotely hacking into their electronic devices and covertly tapping into the information that can be found on and through the devices. The FBI accomplishes this in much the same way that criminal, civilian hackers do: by delivering spyware to the devices through web or email links. When the user clicks on the link, either on a computer or a smartphone, the government can use the spyware either to collect existing files or to activate the device’s recording devices for continuing surveillance. According to the article, one former U.S. official confirmed that the FBI can remotely activate the microphones in phones running the Android operating system to record conversations.
This sort of government intrusion goes well beyond the NSA’s acknowledged collection of telephone and email metadata. This spyware is programmed to collect full conversations, real-time photos and videos, and stored files of all types, from devices that people have near them 24 hours a day. This type of intrusive government intrusion into a device in which an individual has a reasonable expectation of privacy is the type that the Constitution’s Fourth Amendment is meant to address. And, in theory, it does. The FBI and other law enforcement agencies are required to obtain a warrant each time that they implement this technology to gather content such as computer files, and must meet a stricter standard for wiretaps when conducting surveillance using the webcam or microphone.
As technology advances, it becomes easier for the government to watch our every move. Whereas once the government could listen to conversations only on wiretapped telephones or bugged areas, it is now able to keep an open microphone on a device that people keep on them no matter where they are. We hope that law enforcement and the courts will seek and allow the use of this incredibly invasive and effective technique only rarely where no other surveillance is sufficient and not as a matter of course in standard investigations.