New York residents may be aware that federal agencies including the National Security Agency have been accused of monitoring the electronic communications of millions of Americans, but they may not know about a new technique being used by law enforcement that places malware on the computers of people who have been suspected of being involved in illegal activity. Civil rights groups are especially concerned about this development because it allows federal agents to monitor the online activates of large numbers of internet users after obtaining a single search warrant.

Law enforcement hacking was made possible by a revision of Rule 41 of the Federal Rules of Criminal Procedure that was implemented in 2016. The rule change allows government agents to seize the servers of websites alleged to be involved in criminal enterprises in order to identify and track their visitors. In a 2016 case, the technique was used by FBI agents to monitor the activities of approximately 9,000 individuals who accessed a website that allegedly distributed child pornography.

Civil rights groups see this case as an ominous sign of things to come, and the ACLU in coordination with two other groups released a report dealing with law enforcement hacking on March 30. The report was written to help defense attorneys identify possibly unconstitutional surveillance and provide them with strategies to suppress evidence that may have been gathered illegally.

Experienced criminal defense attorneys may pay particular attention to the validity of searches when their clients have been implicated by their online activities or electronic communications. When it appears that rights guaranteed by the Fourth Amendment could have been violated, attorneys may make additional discovery requests to find out more about how law enforcement acquired the information in question.