Graham Cluley has an amusing take on the FBI’s reaction to its Playpen NIT being characterized as “malware” in When is malware not malware? When the FBI says so, of course.
As Graham points out, the FBI has been denied the fruits of its operation of a child porn site (alleged identities of consumers of child porn), but there is a deeper issue here beyond than defining malware.
The deeper issue lies in a portion of the FBI brief that Graham quotes in part:
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“Malicious” in criminal proceedings and in the legal world has very direct implications, and a reasonable person or society would not interpret the actions taken by a law enforcement officer pursuant to a court order to be malicious.
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The FBI brief echoes Cardinal Richelieu in The Three Musketeers:
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CARDINAL RICHELIEU. … Document three, the most important of all: A pardon — in case you get caught. It’s call a Carte Blanche. It has the force of law and is unbreakable, even by Royal fiat.MILADY. (Reading it.) “It is by my order and for the benefit of the State that the bearer of this note has one what he has done.”
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The FBI contends a court order, assuming it bothers to obtain one, operates as Carte Blanche and imposes no limits on FBI conduct.
Moreover, once a court order is obtained, reports by the FBI of guilt are sufficient for conviction. How the FBI obtained alleged evidence isn’t open to inspection.
Judges should disabuse the FBI of its delusions concerning the nature of court orders and remind it of its proper role in the criminal justice system. The courts, so far as I am aware, remain the arbiters of guilt and innocence, not the FBI.