The U.S. Justice Department said in a federal court filing on Monday that the government has the legal authority to hack into servers outside of the country without a warrant.
The claim came as part of the ongoing trial of the alleged operator of the Silk Road illicit drug website. The suspect, Ross Ulbricht, claimed that the government's explanation for how they located the server of the anonymous website was "implausible," claiming that it's possible the FBI may have instead unlawfully colluded with the NSA to hack into the site - a technique known as parallel construction.
But even if the FBI did somehow hack into the server to verify its IP address, the government maintains that the Fourth Amendment would not have been violated, since the server was located outside of the country in Iceland.
"In any event, even if the FBI had somehow 'hacked' into the SR Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment," wrote Assistant US Attorney Serrin Turner in the government's response to the allegations. "Because the SR Server was located outside the United States, the Fourth Amendment would not have required a warrant to search the server, whether for its IP address or otherwise."
Because the Silk Road server was hosting a "blatantly criminal website," continued Turner, "it would have been reasonable for the FBI to 'hack' into it in order to search it, as any such 'hack' would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary."
The FBI claimed that they identified the location of the site, which was hosted through the anonymizing software Tor, through a leaky CAPTCHA on the login page, but that story was called into question by security experts who said it would be nearly impossible for the FBI to obtain an IP using the described methods.
The trial for Ulbricht, who has pleaded not guilty, is set for next month. The government claims he "reaped commissions worth tens of millions of dollars," through the site.
