Supreme Court Approves Rule 41 Changes, Putting FBI Closer To Searching Any Computer Anywhere With A Single Warrant
from the impeccable-timing dept
The DOJ is one step closer to being allowed to remotely access computers anywhere in the world using a normal search warrant issued by a magistrate judge. The proposed amendments to Rule 41 remove jurisdiction limitations, which would allow the FBI to obtain a search warrant in, say, Virginia, and use it to "search" computers across the nation using Network Investigative Techniques (NITs).
This won't save evidence obtained in some high-profile cases linked to the FBI's two-week gig as child porn site administrators. Two judges have ruled that the warrants obtained in this investigation are void due to Rule 41(b) jurisdiction limitations. (Another has reached the same conclusion in an unrelated case in Kansas). The amendments recently approved by the US Supreme Court would strip away the jurisdiction limitation, making FBI NIT use unchallengeable, at least on jurisdiction grounds.
Rule 41. Search and SeizureThe DOJ claims the updates are needed because suspects routinely anonymize their connections, making it difficult to determine where they're actually located. Opponents of the changes point out that this significantly broadens the power of magistrate judges, who would now be able to approve search warrants targeting any computer anywhere in the world.
(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:
(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
(A) the district where the media or information is located has been concealed through technological means; or
(B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.
The real problem, though, is this: there's no significant Congressional opposition (save Ron Wyden) to the proposed amendments.
“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. I plan to introduce legislation to reverse these amendments shortly, and to request details on the opaque process for the authorization and use of hacking techniques by the government,” said Wyden.Worse, the amendments will be adopted if Congress does what it frequently does best: nothing. Congress actually needs to take action to block the amendments, but seeing as it only has until December 1, 2016, to do it, it seems highly unlikely that it will make the effort to do so -- not during an election year and certainly not during the annual struggle of approving a budget.
“Under the proposed rules, 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. These are complex issues involving privacy, digital security and our Fourth Amendment rights, which require thoughtful debate and public vetting. Substantive policy changes like these are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process.”
On the bright side, Ron Wyden is generally pretty good at mobilizing opposition, even when there appears to be little support for his efforts. We can also expect a variety of civil liberties groups and activists to start pushing Congress to "opt out" of the proposed changes.
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Filed Under: fbi, hacking, rule 41, scotus, supreme court
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Re:
Might makes right to a bully.
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How is this supposed to work?
I'll grant that less than 2% of the populace runs something other than Windows or Mac, but that's probably the 2% these FBI chaps are most interested in, eh?
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Re: How is this supposed to work?
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Re: Re: How is this supposed to work?
How do we know this? And what happens to the first "San Bernadino iPhone" laptop that the FBI tries to hack? It'll be just like the damn SOPA and CIPA, or the "fashion copyright" idiocy - every session, a new congressperson will file a bill to mandate an Official US Citizen's Computer (a.k.a. Windows 11) to "facilitate law enforcement".
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Turnabout however is /not/ fair play
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Re: Turnabout however is /not/ fair play
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Re: Re: Turnabout however is /not/ fair play
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May not be as fast as they want but it can be feasible and it respects rights and privacy of everybody else while at it.
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Re:
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Re: FBI's credibility
It's often noted that Lyndon Johnson said, "Don't get caught sleeping with a live pig or a dead woman". Nobody ever says why ol' LBJ knew this, but I think we can all guess that the FBI caught him doing one or the other.
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The problem: particularity
Where it falls down is "particularity"; with respect to the Fourth Amendment clause, "...particularly describing the place to be searched, and the persons or things to be seized."
As I see it, the problem isn't that a warrant was used to access a computer at an unknown location, the problem was that a single warrant was used to access every computer at every location.
Warrants under a new rule 41 should serve only for technical identification of a computer. Once a computer has been identified particularly, the FBI should have to obtain a specific warrant to search that computer particularly.
Suppose the government gained control of a drug distribution point, and decided to continue to ship drugs...along with a free tracker in every bag. A single NIT-equivalent warrant should be good for that, even though the government has no idea where the bags are going (could be going to another state).
But once a particular bag has been delivered to a particular warehouse, for example, the government should have to obtain a warrant particular to that warehouse.
Rule 41 did fall down, I just disagree as to the extent of the breakdown and the flaws of the proposed correction.
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Judge Shopping
Ha, ha, ha. Of course not.
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