About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most