The use of malware itself isn't really the legal reason why this is questionable. You can get a warrant to hack someone.
Just like busting down a door and taking someone's stuff is burglary, but a cop can do it with a warrant.
The legal reason for why this is questionable is because typically the judge can only issue warrants for people or places inside their state. The problem is that the rule was written before the internet.
It totally falls apart with TOR because law enforcement and courts can't even figure out where the server is. So this leads to an interpretation of the law where no court in America can issue a search warrant on a .onion address. That is absurd. There is no policy or legal reason to justify giving someone like a child porn distributor a free pass merely because they use TOR.
I'd actually argue that the search is valid if the state has a TOR access node located within it because the .onion address is what is being probed via TOR. It's essentially acting on behalf of the server. But many would disagree with such a broad reading of the rules. And it would be hard to draw a line between TOR and an old ISP network.
If your ship sails under the flag of country X, then it is generally country X's navy that has the authority to keep you in line in international waters. So pick a country like the Bahamas (where the ship in the story was flagged) whose navy rarely leaves their territorial waters, and you can literally get away with murder.
Just like busting down a door and taking someone's stuff is burglary, but a cop can do it with a warrant.
The legal reason for why this is questionable is because typically the judge can only issue warrants for people or places inside their state. The problem is that the rule was written before the internet.
It totally falls apart with TOR because law enforcement and courts can't even figure out where the server is. So this leads to an interpretation of the law where no court in America can issue a search warrant on a .onion address. That is absurd. There is no policy or legal reason to justify giving someone like a child porn distributor a free pass merely because they use TOR.
I'd actually argue that the search is valid if the state has a TOR access node located within it because the .onion address is what is being probed via TOR. It's essentially acting on behalf of the server. But many would disagree with such a broad reading of the rules. And it would be hard to draw a line between TOR and an old ISP network.