The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I recently co-authored a short article with my colleague Sean Murphy on the use of government hacking to identify users of the dark Web: "Government Hacking to Light the Dark Web: What Risks to International Relations and International Law?" 70 Stan. L. Rev. Online 58 (2017).
Here's the abstract:
This essay is a response to Ahmed Ghappour's article, "Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web." Professor Ghappour argues that United States government use of malicious computer code (known as NITs) to investigate criminal cases on the dark web poses a threat to international relations and international law. In Ghappour's view, those threats justify a new regulatory framework to fill the regulatory vacuum that currently leaves the use of NITs to rank-and-file agents.
This response challenges Ghappour's framework in three ways. First, it questions whether there are real international relations difficulties with the use of NITs to investigate Tor users engaged in criminal activities. Second, it questions whether government use of NITs to investigate crimes on the dark web violates international law. Third, it argues that the use of NITs on the dark web does not occur in a regulatory vacuum. We agree with Ghappour that government use of NITs raises significant technical, legal, and policy challenges. At the same time, we are unpersuaded that the threat to international relations caused by use of NITs to investigate criminal cases on the dark web is among them.
The paper has been published, but comments are welcome as always. And to read Professor Ghappour's article, please visit here: "Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web," 69 Stan. L. Rev. 1075 (2017).