(MOTHERBOARD) – The FBI has been in the hacking business for a long time, famously using malware to log suspects' keystrokes as early as the 1990s. But in the high-profile case surrounding a dark web child abuse site called Playpen, the Bureau is arguing that because it was authorized by a warrant, its computer intrusion code shouldn't be called "malware" at all.
In a testimony earlier this week in the case of US vs. Jay Michaud, FBI special agent Daniel Alfin argued that the hacking tool used to identify Michaud and thousands of other Playpen users—which the FBI euphemistically calls a "Network Investigative Technique" or "NIT"—isn't malware because it was authorized by a court and didn't damage the security of Michaud's computer.
"The NIT utilized in this investigation was court-authorized and made no changes to the security settings of the target computers to which it was deployed. As such, I do not believe it is appropriate to describe its operation as 'malicious,'" Alfin said. He added that he personally loaded the NIT onto one of his own machines and that "it did not make any changes to the security settings on my computer or otherwise render it more vulnerable to intrusion than it already was."
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