IP/Internet/New Media Blog

Jennifer Granick‘s headline at Law Across the Wire and Into the Cloud reads, “Court Authorizes U.S. Gov’t to Kill Zombies. The headline is entertaining, but at issue is a potential threat to online rights:

As for the more controversial aspect of the operation, the method to kill switch power, the DOJ relied on 18 U.S.C. 2521, entitled “Injunction against illegal interception” for this authority. That statute allows the Attorney General to file a civil suit to get an injunction again unlawful felony interception of communications. The provision says, in part,

The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought.

The government argued that the kill switch is an “other action” warranted to protect the individuals whose computers are infected. This argument is unprecedented, literally. No court has ever analyzed the meaning of this section and there are no reported decisions which cite this provision. Certainly, the Coreflood operators are unlikely to challenge this part of the Court order. But, if an infected computer gets taken off-line as a result of this operation, the owner may seek redress against the government. And civil libertarians have to ask what the limits of this new power the government claims are.

Because this is an untested area of law, one can expect a war of metaphor and analogy to commence. Be wary of discussions that gloss over the technical details of what is being done. The Department of Justice, the Federal Bureau of Investigations, a non-profit called the Internet Systems Consortium, and Microsoft are working together to find machines that, ostensibly, are running malicious software unbeknownst to the owners of those machines, and having found them, are working to disable that code. Having developed this capability for a plausibly legitimate purpose, one is perhaps justified in being concerned about the potential for abuse of such capabilities, and about possible unintended consequences. In the current socio-political milieu (i.e., the so-called “war” on terror) there is a zeal in such efforts that seems to place concerns about possible governmental overreach on a lower priority. The language of killing zombies, playful as it is, lends itself well to masking such overreach.