The FBI’s case against MegaUpload appears to depend in large part on up to five years of internal email and IM conversations gathered by FBI spyware programs installed on the suspect’s computers. Documents filed by the US authorities discuss alleged conversations between senior MegaUpload management that were carried out over the Skype instant-messaging system. This is intriguing given that Skype claims not to retain messages beyond 30 days and the criminal investigation supposedly didn’t begin until early last year. So where did the FBI get those messages?
Greg Sandoval follows the FBI’s tracks: The U.S. Department of Justice told CNET that it obtained a judge’s approval before securing the correspondence, which wouldn’t have been necessary in the case of an informant. "Electronic evidence was obtained though search warrants, which are reviewed and approved by a U.S. court," a spokesman for the U.S. Attorney for the Eastern District of Virginia said.
In 2007, the FBI obtained court approval to implant spyware called CIPAV on a suspect’s computer, which transmitted to government computers an ongoing log of the user’soutbound connections. Documents obtained by CNET through the Freedom of Information Act in 2009 show that CIPAV has been used in investigations designed to nab extortionists, database-deleting hackers, child molesters, and hitmen.
While much of this is still just informed speculation the fact remains that the MegaUpload case is fundamentally about something as lacking in danger as copyright protection. This is not terrorism. Yet still it seems that the FBI may have been able to install and maintain spyware over a long period of time.
So, without wanting to be paranoid, let us take a moment to reflect on the case that was brought against Adscend just this week in which the authorities may not even have a case yet are comfortable with making all kinds of claims. Given that case, then one has to consider that if the FBI can do this stuff on behalf of a few movie studios and record companies, what’s to stop the FTC doing it tomorrow on behalf of Facebook, Google or Microsoft? For all too many in the performance marketing business, it’s worth thinking about.