Washington — Congress finally has an opportunity, though narrow, to block or limit a proposal to expand government and law enforcement’s power to search and manipulate computers. Last week the Supreme Court approved and forwarded to Congress the Department of Justice’s proposed changes to Rule 41 of the Federal Rules of Criminal Procedure, which governs the circumstances for obtaining a warrant.
Currently, magistrate judges can only approve warrant requests in their own district. The government is asking that the scope of the rule be expanded so that any one judge could issue a warrant allowing “remote searches” covering multiple computers across multiple jurisdictions, in potentially unknown locations. These remote searches may require the deployment of “network investigative techniques,” which are effectively government hacking tools. The DOJ contends that these changes are merely procedural updates.
However, the Computer & Communications Industry Association is concerned there has been minimal public input and little understanding of the far-reaching consequences of such changes. When the government acts to expand its powers in ways that may infringe on fundamental constitutional rights such proposals must be closely scrutinized. The significance and risks of providing the government with greatly expanded hacking authority is not widely understood and needs the full attention of the Congress and the public. If Congress does nothing by December 1st, the rule change will take effect.
CCIA has fought the unreasonable expansion of government surveillance for more than a decade. The following can be attributed to CCIA President & CEO Ed Black:
“This so-called procedural update raises complex technical, Constitutional, and geopolitical concerns. A substantive expansion of government hacking powers should not be done as a behind-the-scenes rule change—its merits and drawbacks should be openly debated.
“The adoption of the remote search provisions would grant legitimacy to practices that have yet to be found constitutional under the requirements of the Fourth Amendment. A key requirement of a constitutional search is that it is focused on a known location with particularity. One problem is that a remote search inherently lacks those elements.
“We are further concerned that by using hacking tools and remotely searching computers in unknown locations, it would be all too easy to search, intrude upon and even damage the security of foreign computers, which could violate international sovereignty and is currently the subject of robust Congressional debate.”