House Privacy Gurus Gear Up Anti-Government Hacking Campaign

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Privacy advocates in the House are expected to release legislation on Wednesday that would reverse recent Supreme Court-approved changes to federal criminal procedure.

Without congressional action, the change, allowing judges to grant a single warrant for government-run hacking operations on any number of computers, will go into effect on Dec. 1.

The bill is the companion measure to legislation that bipartisan group of senators introduced last week. Sponsors have already embarked on an education campaign to build momentum on and off Capitol Hill.

“We’re short on time before the deadline. The congressional calendar is very full. There’s going to really need to be a groundswell of support both from the public and the privacy advocates within Congress,” bill co-sponsor Rep. Blake Farenthold (R-Texas) told Morning Consult in a Tuesday phone interview. “It needs to be done, unless we start getting some media attention on the potential for abuse on this and some pressure from our constituents to do something about it, it’s going to be hard to fit it into the calendar.”

Texas Republican Rep. Ted Poe will sponsor the bill in the House with fellow Judiciary Committee members Farenthold and Zoe Lofgren (D-Calif.) as original co-sponsors.

The bill would reverse pending changes affecting Rule 41 of the Federal Criminal Procedure. Judges can currently only issue computer-hacking warrants within their own jurisdictions, but the new Supreme Court reading would allow them to issue warrants anywhere. Privacy advocates say that goes too far.

The Department of Justice has worked for years to secure the changes, but Congress has the authority to change or reverse them before they go into effect.

That time crunch is spurring quick action from civil liberties advocates in both chambers who believe the change is too important to leave up to the courts and federal agencies.

“Rule 41 has created such a huge hole, it’s something that needs to be debated by Congress,” Farenthold said, echoing similar calls from the sponsor of the Senate’s version of the bill, Democrat Ron Wyden of Oregon.

Having that debate in time will be difficult for the bill’s supporters. Many lawmakers don’t understand what’s going on with the rule change or might feel that national security trumps those concerns.

“Timing will be tough for sure, as will education,” said Bijan Madhani, public policy and regulatory counsel at the Computer and Communications Industry Association. “Before we can even consider getting momentum to move the bill, we have to get most of Congress up to speed on what the changes are and how harmful they would be.”

Farenthold said a big part of the job now, other than attracting media attention, is getting some of his colleagues on board who are rightfully worried about the security issues that drove the changes to the rule.

“We are in the midst right now, I think, of one of the biggest battles in the privacy world we’ve faced in today’s times,” Farenthold said. “With terrorists attacking there’s a willingness to give up some of your freedoms and privacy in order to feel safe, that’s completely understandable but if we keep down this path we’re going to wake up in a few years in George Orwell’s 1984.”

In terms of whipping up support, Farenthold said it’s too early to tell exactly how much support the bill’s sponsors can muster. “The privacy advocates know who each other are on both sides of the aisle, but we don’t know all of the fence-sitters or the folks that are persuadable,” he said.

The Texas Republican pointed to the failure of the Kelsey Smith Act to pass the House under suspension of the rules on Monday evening as proof that there are members who would support the cause.

That bill would require cell phone providers to provide the call location data for devices that either dialed 911 or are in the possession of someone believed to be in the risk of death or serious physical injury. It is named for a Kansas girl who was abducted and killed in 2007 and whose family could not locate her body for several days due to difficulties with their cell phone provider.

The bill couldn’t reach the two-thirds majority it needed to pass the House on Monday after a last-minute push from civil liberties groups that said it lacked sufficient oversight. It would have allowed a police officer with only “reasonable belief” of an emergency to compel a provider to reveal an individual’s location.

“If you look at some of last night’s ‘no’ votes you see some potential folks that need to be contacted about this one,” Farenthold said.

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