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93 N.Y.U. L. Rev. 822 (2018)
Nits a No-Go: Disclosing Exploits and Technological Vulnerabilities in Criminal Cases

handle is hein.journals/nylr93 and id is 844 raw text is: NITS A NO-GO: DISCLOSING EXPLOITS AND TECHNOLOGICAL VULNERABILITIES IN CRIMINAL CASES RUPINDER K. GARCHA* Network investigative techniques (NITs) are law enforcement tools that allow the government to hack into targeted computers by exploiting technological vulnerabil- ities. NITs have succeeded in identifying and locating criminal actors operating on the Dark Web where traditional investigative techniques have failed. They play a critical role in the investigation of cybercrime and in the national security sphere. But disclosure of a NIT's code can render it useless and jeopardize government operations that rely on that code. In numerous federal cases, criminal defendants have sought access to NIT code, and courts have had to decide whether the govern- ment must disclose the code. The government's interest in confidentiality is inher- ently at tension with criminal defendants' right to discovery and information material to their defense. In order to make informed decisions about disclosure, courts must be cognizant.of the equities at'stake and understand technical details about NITs. Courts can better equip themselves by holding ex parte and in camera proceedings, and appointing experts to augment their understanding of technical issues. These procedures can ensure that the government is held accountable, defendants' rights are protected, and NIT code is preserved. As the Dark Web expands, cybercrime is likely to become more pervasive, and criminal actors will devise more sophisticated means of anonymizing their presence online. Law enforcement will have to respond cre- atively and courts must be prepared to tackle novel issues that straddle technology and law. INTRODUCTION ................................................. 823 I. NITs IN A NUTSHELL: THE VALUE AND COMPLEXITIES OF NETWORK INVESTIGATIVE TECHNIQUES ............. 830 A. NITs Exploit Vulnerabilities ......................... 831 B. NITs Identify Criminals ............................. 832 C. The Government's Evolving Use of NITs ........... 835 II. NITS IN DISARRAY: SHORTCOMINGS IN COURTS' UNDERSTANDING OF NITs .............................. 837 A. The Defendant's Rights ............................. 838 * Copyright © 2018 by Rupinder K. Garcha. J.D., 2018, New York University School of Law; B.A., 2013, Haverford College. Thank you to Professor Lisa 0. Monaco for invalu- able input and guidance from day one. Many thanks to Professor Harry First, Professor Randy Milch, and Zachary Goldman for helpful comments, suggestions, and criticism. I would also like to thank the Garcha family for their endless support, particularly Jasminder Garcha. And special thanks to the editors of the New York University Law Review, espe- cially Alexandra Ferrara, Julian Clark, Ryan Hanley, and Hillel Buechler. 822 Imaged with Permission of N.Y.U. Law Review

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