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Thanks to a Supreme Court decision on Thursday, law enforcement agencies including the FBI may end up with broad powers to hack any computer, regardless of its physical location—but the expansion of power hinges upon congressional approval.
With a new rule change in the Federal Rule of Criminal Procedures, which covers search and seizure protocols, federal judges would be able to issue warrants to search computers located anywhere in the world. Before the Supreme Court’s alteration, federal magistrate judges were allowed only to issue warrants within their own jurisdictions. The Supreme Court submitted the changes to Congress as a part of the court’s annual review of theprocedures, which were passed by Congress in 1938 for a more uniform way of dealing with criminal cases across the country.
At least one senator and several privacy rights organizations called the decision an affront to civil rights and a doorway to unchecked government hacking. Congress has until December 1 to amend or block the Supreme Court decision. Democratic Senator Ron Wyden of Oregon has publicly slammed the decision on Twitter and said he will propose a bill to reverse it.
“These amendments will have significant consequences for Americans’ privacy and the scope of the government’s powers to conduct remote surveillance and searches of electronic devices,” Wyden says in a statement. “These are complex issues involving privacy, digital security and our Fourth Amendment rights, which require thoughtful debate and public vetting.”
Wyden also expressed concerns that the amendments can grant FBI power to search millions of computers at once. A common case for possible large-scale government hacking under the new Rule 41 may come when the FBI decides to target a cybercriminal network made of thousands of compromised computers called a botnet. Most of these botnet computers are operated by regular citizens who have no idea their computer has been compromised.
The Department of Justice have been prodding the courts to make this amendment happen for years, according to Amie Stepanovich, U.S. policy manager at the tech policy organization Access Now. But fed up with the slow-moving Congress, the Justice Department chose a less transparent route. “It should be up to Congress to decide the rules for government hacking after an informed public debate. However, Congress has never yet spoken on the issue,” Stepanovich says.
The Department of Justice welcomed the changes. For a few years, the department pushed for reform on Rule 41, arguing it will help prosecute criminals who use Tor and other browsers which allows users to surf the internet in complete anonymity.
Earlier this month, a federal judge in Oklahoma had to turn down evidence in a child pornography case due to Rule 41’s limitations. FBI agents identified child pornography downloaders by placing trackers inside a dark-web child porn forum called Playpen, but that evidence was suppressed because amagistrate judge in Virginia, not in Oklahoma, gave the warrant for the Playpen raid long before the Oklahoma case.
“Why should the rule be ‘You can hack a computer with a warrant if you know where it is but not when you don't?’” says Nicholas Weaver cybersecurity researcher at UC Berkeley’s International Computer Science Institute toPolitico.
In 2015, the Department of Justice proposed amending Rule 41 to a judicial advisory committee in Congress. Google, along with the American Civil Liberties Union, the Electronic Frontier Foundation and other privacy advocacy groups, wrote a letter raising concerns the changes would break international agreements and violate the Fourth Amendment.
“Despite [the Justice Department’s] weak assurance that the amendment does "not purport" to expand the current scope of Rule 41,” reads the letter penned by Google’s law enforcement and information security director Richard Salgado, “in reality it will: the nature of today's technology is such that warrants issued under the proposed amendment will in many cases end up authorizing the government to conduct searches outside the United States.”
According to Politico, only a fraction of Congress seems to understand the implications surrounding Rule 41. One Hill aide says “most offices are unfamiliar with the Rule 41 amendments.” But both sides of the Rule 41 argument agrees that Congress—and the general public—needs to debate in the upcoming months.
“If ever there was a job for the Internet Outrage Machine, the Rule 41 changes are it,” tweets Matt Blaze , a cryptography expert and University of Pennsylvania associate professor.
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