Government Hacking to Light the Dark Web: What Risks to International Relations and International Law?

10 Pages Posted: 24 Apr 2017 Last revised: 10 May 2017

Orin S. Kerr

The George Washington University Law School

Sean D. Murphy

George Washington University - Law School

Date Written: April 24, 2017

Abstract

This essay is a response to Ahmed Ghappour's forthcoming article, "Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web." Professor Ghappour argues that United States government use of malicious computer code (known as NITs) to investigate criminal cases on the dark web poses a threat to international relations and international law. In Ghappour's view, those threats justify a new regulatory framework to fill the regulatory vacuum that currently leaves the use of NITs to rank-and-file agents.

This response challenges Ghappour’s framework in three ways. First, it questions whether there are real international relations difficulties with the use of NITs to investigate Tor users engaged in criminal activities. Second, it questions whether government use of NITs to investigate crimes on the dark web violates international law. Third, it argues that the use of NITs on the dark web does not occur in a regulatory vacuum. We agree with Ghappour that government use of NITs raises significant technical, legal, and policy challenges. At the same time, we are unpersuaded that the threat to international relations caused by use of NITs to investigate criminal cases on the dark web is among them.

Keywords: Tor, Hacking, International Law, Dark Web

JEL Classification: K14, K42

Suggested Citation

Kerr, Orin S. and Murphy, Sean D., Government Hacking to Light the Dark Web: What Risks to International Relations and International Law? (April 24, 2017). Stanford Law Review Online (2017, Forthcoming); GWU Law School Public Law Research Paper No. 2017-34; GWU Legal Studies Research Paper No. 2017-34. Available at SSRN: https://ssrn.com/abstract=2957361

Orin S. Kerr (Contact Author)

The George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)

HOME PAGE: http://www.law.gwu.edu/orin-s-kerr

Sean D. Murphy

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-8763 (Phone)
202-994-5654 (Fax)

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