This Article addresses the use of Trojan devices by the Government to legally search computers potentially around the world. Although the Government does seek judicial authorization for these techniques based on a search warrant, there are still concerns about whether the applications meet constitutional standards as well as Rule 41 of the Federal Rules of Criminal Procedure (“Rule 41”). The use of these Trojan devices has not been addressed in current scholarship meaningfully; therefore, this Article focuses on when and how authorization of search warrant applications for these techniques are appropriate. Part II addresses the implications of the standards enunciated in the Fourth Amendment and Rule 41 in ascertaining whether a search warrant should be issued. Next, Part III discusses four search warrant applications seeking authorization for the techniques discussed in Part II and analyzes whether the search warrants were appropriate. Finally, in Part IV, the Article concludes by addressing the privacy concerns that put these search methods in direct opposition with both constitutional protections and procedural requirements for search warrants. The Article proposes solutions to avoid the overreaching and invasive concerns that the use of Trojan device search methods can create.
Owsley, Brian L.
"Beware of Government Agents Bearing Trojan Horses,"
Akron Law Review: Vol. 48
, Article 4.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol48/iss2/4