On April 28th of this year, the Supreme Court approved a rule change that has gone mostly unnoticed and unreported but has massive implications for the free and open internet. The Supreme Court has ruled that using the anonymous Tor browser is grounds to issue a search and seizure warrant. When this new rule change goes into effect in December, if the government finds that someone they are looking into is using the TOR browser, they will then be able to search the computer remotely. The rule change says that the government doesn’t even have to know where the computer is, just so long as they are using the TOR browser.
Kevin Bankston, Director of the policy advocacy group Open Technology Institute testified earlier in the process against the rule change, saying, “Whatever euphemism the FBI uses to describe it—whether they call it a ‘remote access search’ or a ‘network investigative technique’—what we’re talking about is government hacking, and this obscure rule change would authorize a lot more of it.” Bankston later said in an interview regarding the change, “Congress should stop this power grab in its tracks and instead demand answers from the FBI, which so far has been ducking Congress’ questions on this issue and fighting in court to keep its hacking tactics secret.”
Tor is free software for anonymous communication. It directs internet traffic through a worldwide volunteer network of over 7000 relays that essentially play a shell game with users to make their browsing anonymous. That browsing could be websites visited, posts to forums, instant messages, and any other form of online communication. This anonymity is what scares the FBI because it is very difficult to intercept those messages. The FBI argued to the Supreme Court that they needed to preemptively hack computers that are using Tor in case they need that anonymous communication. This logic is the digital equivalent of the police opening all of a suspect’s mail and listening to their phone calls to look for evidence that justifies opening their mail and listening to their phone calls.
The other use for the browser is to access what is commonly referred to as the “deep web” or “dark net”. These are simply websites that, for a variety of possible reasons, are not indexed by normal search engines such as Google. This means that the Tor browser can get to websites that are hard to access through conventional means. These unlisted sites are sort of like Tortuga in Pirates of the Caribbean, where you have to know what you are looking for in order to get there. Although some studies have shown that the majority of sites on the deep web relate to black markets of some sort, the Tor network’s anonymity has proven vital to whistleblowers for exposing information that could be dangerous publishing any other way. Most famously, Edward Snowden used the Tor network to communicate with journalists and expose our government spying on ordinary citizens.
The line between security and freedom is a hotly contested topic in a post 9/11 America. It is natural to be afraid of citizens wanting privacy, but as a nation, we should ask ourselves if a desire to be left alone should be legal grounds for invading that privacy? Edward Snowden talked about the right to privacy in a 2015 Reddit AMA saying “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.”