Huge government surveillance programs have been the subject of many media stories and political debates in recent years, but Arizona residents may be unfamiliar with one of the latest forms of electronic surveillance used by federal law enforcement agencies. A report released recently by several civil rights groups reveals that government agents are now able to install malicious software on the computers of hundreds or even thousands of individuals suspected of being involved in illegal activity without first obtaining search warrants. This malware is then used to monitor what these individuals are up to online and gather evidence that could be used against them.
Due to a change made to Rule 41 of the Federal Rules of Criminal Procedure, federal agents need to obtain only a single search warrant to place monitoring software on the computers of thousands of Americans. Agents are not even required to tell judges the names of the individuals involved or where they reside. This practice attracted the attention of the media when it was revealed that the Federal Bureau of Investigation was able to monitor the internet activity of 9,000 individuals in 120 countries after obtaining a solitary search warrant.
The warrant authorized what is known as a network investigative technique that involves placing malware on an internet server that then finds its way onto the computers of any individuals who visit the website concerned. This kind of surveillance has outraged civil rights groups, and attorneys from the National Association of Criminal Defense Lawyers, the Electronic Frontier Foundation and the American Civil Liberties Union released a report on March 30 that provides criminal suspects and their attorneys with ways of identifying and combating possibly unconstitutional government activities.
Experienced criminal defense attorneys will likely be familiar with many of the techniques covered in the report. Attorneys may suspect electronic monitoring when online activity is crucial evidence in criminal prosecutions, and they could make additional discovery requests when these suspicions arise to determine whether or not rights guaranteed by the Fourth Amendment have been respected.