With Remote Hacking, the Government’s Particularity Problem Isn’t Going Away

Crocker’s article is a defining summary of the legal problems associated with the U.S. Government’s attempts to use malware to conduct lawful surveillance of persons suspected of breaking the law. He explores how even after the law is shifted to authorize magistrates to issue warrants pertaining to persons outside of their jurisdictions, broader precedent concerning wiretaps may prevent the FBI or other actors from using currently-drafted warrants to deploy malware en masse. Specifically, the current framework adopted might violate basic constitutional guarantees that have been defined in caselaw over the past century, to the effect of rendering mass issuance of malware an unlawful means of surveillance.

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Here’s Why the Government Thinks It Can Kill You Overseas:

Holder left several aspects of his argument unexplained. He did not define the terms “senior operational leader” of al-Qaida, nor what it means to be an “affiliate” of the amorphous group. The attorney general only referred to the drones through the euphemism “stealth or technologically advanced weapons.” Holder did not explain why U.S. forces could not have captured Awlaki instead of killing him, nor what its criteria are for determining on future missions that suspected U.S. citizen terrorists must be killed, rather than captured. Holder did not explain why Awlaki’s 16-year-old son, whom a missile strike killed two weeks after his father’s death, was a lawful target. Holder did not explain how a missile strike represents due process, or what the standards for due process the government must meet when killing a U.S. citizen abroad. Holder did not explain why the government can only target U.S. citizens suspected of terrorism for death overseas and not domestically.

In which the United States government asserts, in all seriousness, that it’s perfectly okay (appropriate, even) for the President to order the killing of an American citizen without any due process of law whatever. The Constitution? Not a barrier anymore, apparently.