A key senator is trying to block the Justice Department’s request to expand its remote hacking powers, after the Supreme Court signed off on the proposal Thursday.
“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,” warned Sen. Ron Wyden (D-Ore.), a prominent digital privacy advocate and member of the Intelligence Committee, on Thursday.
{mosads}The proposed alteration to the little-known criminal procedure rules would allow judges to grant warrants for electronic searches in multiple locations or even when investigators don’t know the physical location of a device.
The Justice Department, which has been working for years on getting the change, insists the revision to what’s known as Rule 41 is a necessary update to match the realities of modern digital investigations.
“This amendment ensures that courts can be asked to review warrant applications in situations where is it currently unclear what judge has that authority,” the DOJ said in a statement.
But tech companies such as Google, computer scientists and privacy advocates have decried the potential update, which they believe would give the FBI the authority to hack computers with little oversight.
The Supreme Court OK’d the change on Thursday and passed the request along to Congress for final approval. If lawmakers give the thumbs-up, or do nothing, the change would go into effect in six months.
Wyden said he will soon introduce legislation that would block the revision.
“Under the proposed rules,” Wyden said Thursday, “the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once.”
“And the vast majority of the affected computers would belong to the victims, not the perpetrators, of a cybercrime,” he added.
The long-simmering debate came back into the news last week when a federal judge invalidated a government warrant used to hack a child pornography suspect.
The warrant in question allowed investigators to place malware on Playpen, a website known to contain child porn, and identify users. Using this method, the government reportedly then identified thousands of users, leading to numerous cases.
But civil liberties advocates and legal experts questioned whether the government could use one warrant, authorized in Virginia, to uncover previously unknown people in locations around the country.
The ruling was one of the first test cases of the issues the two sides are debating in the push to revise Rule 41.
Law enforcement officials say it would be impossible to obtain thousands of warrants for each person they uncover in investigations like the one into Playpen, especially when they don’t know where the site’s users are located.
“Criminals now have ready access to sophisticated anonymizing technologies to conceal their identity while they engage in crime over the Internet, and the use of remote searches is often the only mechanism available to law enforcement to identify and apprehend them,” the DOJ said.
But the tech community and privacy advocates warn that giving judges the power to authorize warrants for multiple, or even undetermined, jurisdictions is a slippery slope. It could lead to dragnet searches stretching across borders, they argue.
These opponents came out on Thursday to urge Congress to block the Rule 41 update.
Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union (ACLU), called the revision “a monumental change” that “should not be snuck by Congress under the guise of a procedural rule.”
“What we’re talking about is government hacking,” said Kevin Bankston, director of New America’s Open Technology Institute. “This obscure rule change would authorize a whole lot more of it.”
Civil liberties and privacy advocates believe the DOJ should actually propose a bill that would grant judges these powers, instead of “trying to quietly circumvent the legislative process by pushing for a change in court rules,” Bankston said.
— Updated 2:08 p.m.