Lawful Illegality: Authorizing Extraterritorial Police Surveillance

Abstract

This paper examines Lisa Austin’s (2015) concept of lawful illegality, which interrogates the legal foundations for potentially unlawful surveillance practices by United States (US) signals intelligence (SIGINT) agencies. Lawful illegality involves the technically lawful operation of surveillance powers that might be considered unlawful when examined through a rule of law framework. We argue lawful illegality is expanding into domestic policing through judicial decisions that sanction complex and technically sophisticated forms of remote online surveillance, such as the use of malware, remote hacking, or Network Investigative Techniques (NITs). Operation Pacifier targeted and dismantled the Playpen dark web site, which was used for distributing child exploitation material (CEM), and has generated many judicial rulings examining the legality of remote surveillance by the FBI. We have selected two contrasting cases that demonstrate how US domestic courts have employed distinct logics to determine the admissibility of evidence collected through the NIT deployed in Operation Pacifier. The first case, United States v. Carlson (2017 US Dist. LEXIS 67991), offers a critical view of the use of NITs by the FBI, with physical geography constraining the legality of this form of surveillance in US criminal procedure. The second case, United States v. Gaver (2017 US Dist. LEXIS 44757), authorizes the use of NITs because the need to control crime is believed to justify suspending the geographic limits on police surveillance to identify people involved in the creation and dissemination of CEM. We argue this crime control emphasis expands the reach of US police surveillance while undermining due process of law by removing the protective function of geography. We conclude by suggesting the permissive geographic scope of police surveillance reflected in United States v. Gaver (2017 US Dist. LEXIS 44757), and many other Playpen cases, erodes due process for all crime suspects, but is particularly acute for people located outside the US, and suggest a neutral transnational arbiter could help limit contentious forms of remote extraterritorial police surveillance.

Policing cryptomarkets and the digital war on drugs

“…The legislative expansion into the extraterritorial domain enhances US law enforcement power and the willingness to identify those considered to be at the centre of transnational conspiracies. This then requires enhanced transnational police cooperation and extraterritorial surveillance power to access and intercept communications between suspects for evidentiary purposes (Warren et al 2020). The ultimate goal is to ensure that offenders are brought to trial in the United States, regardless of their geographic locations at the time any conspiracies or actual offending were detected by US enforcement agencies (see .…”

“…More recently, as we discuss below, the honeypot tactic has been used by Dutch police to identify people engaged in illicit drug transactions through the Hansa cryptomarket (Greenberg 2018) and the FBI in Operation Pacifier after a takedown of the Playpen dark web site (Russell 2017;Weidenhouse 2017). The global reach of operating honeypot sites that are seized and then subsequently operated by law enforcement agencies represents a form of 'lawful illegality', where police intentionally stretch the jurisdictional reach of their surveillance activities (Austin 2015;Warren et al 2020). Lawful illegality becomes extremely problematic when judges must rely on the technical expertise of highly specialist police investigators, which can result in favouring moral arguments for the expansion of police power.…”

“…Lawful illegality becomes extremely problematic when judges must rely on the technical expertise of highly specialist police investigators, which can result in favouring moral arguments for the expansion of police power. US experience indicates that these procedures intentionally exploit geographic anomalies in warrant procedures to extend the admissibility of evidence against any person in the world who logged into a honeypot site operated by law enforcement agents, and statutes were later amended to allow for this (in particular Rule 41 of Criminal Procedure in the United States, see Warren et al 2020).…”

“…The combination of analogue and digital measures is built on an incremental expansion of US extraterritorial investigative power to detect and prevent organised criminal activity more broadly, to the extent that any dark web activity is now equated with organised crime and transnational conspiracies that affect US interests. By eroding legal constraints on investigative jurisdiction that were conventionally based on geography or physical territory, current procedures aim to identify any user of the dark web regardless of their geographic location within the United States (Russell 2017;Warren et al 2020), or internationally (Warren 2015). This knowledge would otherwise remain unknown due to the use of geolocation masking technologies such as virtual private networks (VPNs) and The Onion Router (Tor).…”

“…Moreover, it is generally considered that the adoption of US legal and investigative standards in this field will ultimately protect the authorities and law-abiding members of the public in foreign jurisdictions (Daskal 2019). This is so even if these mechanisms can be viewed as a form of lawful illegality that ratifies intentional police attempts to flout existing jurisdictional and due process protections (Austin 2015;Warren et al 2020), by operating honeypot sites that potentially entrap suspects regardless of their geographic locations or ultimate intention in using drug cryptomarkets.…”