I usually find myself mostly on the side of the police in arguments with civil libertarians with respect to Internet monitoring of criminal activity. Opponents often go over the top, denying any legitimacy to police efforts. But now the European Union and the British Home Office are the ones losing all respect for the other side of the issue.
The UK Home Office has signed up with an EU policy that encourages police to hack into personal computers. The policy does not require a court warrant for the intrusion. The Home Office says that its agreement with the EU is not legally binding. It also says that it does a small number of such operations under British law, the Regulation of Investigatory Powers Act 2000, which allows surveillance to "prevent or detect serious crime."
I discussed police hacking in the United States in an earlier column. The law on this in the United States is not especially clear, but it appears to be far more protective of individual rights than in Europe. True, here in the United States we have a "warrantless wiretapping" program instituted by the Bush administration and voted for last year by then-Sen. Obama, but it applies to international telecommunications, not to the search of assets in private hands in the United States.
The European policy is shockingly uninterested in individual rights: The police can hack into private computers either by sending an e-mail containing a virus to the suspect's computer or by breaking into a residence to install a keylogger onto a machine or simply placing a surveillance van in the vicinity of a wireless network to intercept the traffic. Computers of users who are suspected of terrorism, pedophilia, or identity or credit card theft will be targeted.
Perhaps even more shocking, or at least I found it so: The policy encourages police to conduct such searches across borders. So the Belgians could search a private computer in England, although it appears they would have to have the English authorities install the malware. The standard for such an operation, according to The Sunday Times, is that "... a senior officer says he 'believes' that it is 'proportionate' and necessary to prevent or detect serious crime-defined as any offence attracting a jail sentence of more than three years."
The BBC quotes Professor Peter Sommer, a cyber-crime expert at the London School of Economics, pointing out that evidence gathered through such hacking can face admissibility problems in court. Normally great care is taken to preserve the "chain of custody" of evidence to show that it has not been tampered with. The controls that establish this are absent on the user's computer, where the user, or perhaps some other hacker, could gain access to it.