The Justice Department defended plans to broadly expand the federal government’s computer hacking powers on Monday as critics launched a last-minute attempt to have Congress intervene.
Unless Congress takes action first, law enforcement officials will be allowed starting next month to hack potentially thousands of computers anywhere in the world with a single search warrant thanks to an update effecting Rule 41 of the Federal Rules of Criminal Procedure.
Rule 41 outlines the government’s ability to issue and execute search warrants, and the looming update will broaden that authority so that judges are able to search and computers regardless of their location. The U.S. Supreme Court approved the changes earlier this year, and they’ll take effect Dec. 1 unless lawmakers decide they want to offer input of their own.
Proponents of the rule change argue it will give the government extra ammunition in its ability to thwart computer crimes, but critics warn that new authority could give way to various privacy and security concerns. On Monday, each side reiterated their argument with nearly one week left until the changes take effect unless Congress acts first.
“The amendments do not create any new law enforcement authority, or make any change to what constitutes a crime or what must be shown to a court in order to investigate crime. Nor do they change in any way the traditional protections under the Fourth Amendment, such as the requirement that investigators establish probable cause before each search. They simply do what the Rules were always intended to do: identify a judge who can consider whether to grant or deny a warrant application,” Assistant Attorney General Leslie Caldwell wrote in a blog post published Monday on the Justice Department website.
The changes are “good news for victims of child sexual exploitation and their families,” Ms. Caldwell added, because the revisions will give investigators a new tool to go after criminal suspects who use operate in the shadows by using anonymizing technology to cloak their physical location.
“Successfully investigating these crimes requires resources, perseverance, technology and often luck. But the proposed amendment will eliminate one obstacle that currently grants effective immunity to many serious criminals,” she wrote.
According to opponents, however, updates to Rule 41 slated to take effect next month present a multitude of potential risks that mustn’t go unchecked by lawmakers. A coalition of more than two dozen groups and companies including Google and the American Civil Liberties Union sent a letter to House and Senate leaders on Monday urging legislators to put the update on ice until the changes can be adequately reviewed.
“The consequences of this rule change are far from clear, and could be deleterious to security as well as to Fourth Amendment privacy rights,” the groups wrote. “Government hacking, like wiretapping, can be much more privacy invasive than traditional searches.”
If implemented as planned, critics say the rule changes will encourage prosecutors to cherry-pick jurisdictions in order to file warrants where they’re most likely to find success, a practice known as “forum shopping.” Additionally, opponents say implementation would raise constitutional concerns because it would allow a judge to issue warrants authorizing investigators to hack and search millions of computers regardless of where they’re located or whether their owner is involved any crime.
“Congress has never considered whether these tactics should be authorized, let alone laid out specific rules and protections to ensure that individual privacy is protected when the government uses these ’network investigative techniques,’ as they are called. As a result, we are concerned that internet users’ security could be inadvertently undermined,” the coalition wrote Monday.
With little more than a week until the changes take effect, the opponents urged Senate and House leaders on either side of the aisle to quickly pass the “Review the Rule Act,” a proposal that would delay the changes from being implemented until July 1, 2017 so Congress can spend more time considering the repercussions of expanding law enforcement’s hacking authority.
“If the DOJ believes that hacking should be permitted, they should ask Congress to pass legislation clarifying when hacking can be used, the protections in place to protect innocent third parties and the recourse in cases where government hacking damages networks or devices,” ACLU Legislative Counsel Neema Singh Guliani told CyberScoop.
“Congress should not sit idly by while the DOJ continues to hack without clear standards in place in place; instead, they should halt the rule change from going into effect and demand information about DOJ’s current hacking practices,” she added.
In addition to the ACLU and Google, co-signers of Monday’s letter to Congress include the Electronic Frontier Foundation, the Center for Democracy and the Technology and the Internet Association, a trade group that lists Amazon, eBay, Facebook and other tech titans as its members. Their letter was addressed to Senate Majority Leader Mitch McConnell, Kentucky Republican; Senate Minority Leader Harry Reid, Nevada Democrat; House Speaker Paul Ryan, Wisconsin Republican; and House Minority Leader Nancy Pelosi, California Democrat.
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