Justice Department Pushes Back on Government Hacking Concerns

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The Department of Justice on Monday rejected arguments that pending changes to federal criminal procedure represent a broad expansion of government hacking powers.

Without congressional intervention, the amendments to “Rule 41” will go into effect on Dec. 1. They will grant federal agents the ability to seek electronic search warrants that cover multiple geographic jurisdictions from a single judge. They will also allow officials to seek warrants to determine the location of computers suspected of participating in illegal activity, even if they are deploying location-masking technology.

Some lawmakers, civil rights organizations and tech groups have expressed concern with the Rule 41 changes, claiming that the amendments will allow federal investigators to shop around for judges inclined to approve sweeping electronic search warrants. This, critics say, will greatly expand the government’s authority to electronically surveil its citizens.

Leslie Caldwell, the assistant attorney general of the DOJ’s Criminal Division, argued in a blog post Monday that the amendments serve only to delineate the proper court venues available to agents seeking electronic search warrants. They will have zero impact on the scope of those warrants or whether they are ultimately granted.

Caldwell took specific aim at the claim that the Rule 41 amendments are illegitimate because they were proposed and considered by an “obscure committee.” She was referring to the advisory committee on criminal rules for the Judicial Conference of the United States, calling out a term the anti-surveillance Electronic Frontier Foundation used in April describe it.

“The proposals were adopted on April 28, 2016, by the Supreme Court of the United States — not typically referred to as an ‘obscure committee’ — after extensive public consideration by the federal judiciary,” Caldwell wrote. She added that it was not at all unusual for the judiciary branch of government — rather than Congress — to consider and approve updates to venue provisions.

Sens. Chris Coons (D-Del.), Steve Daines (R-Mont.), Mike Lee (R-Utah), Ron Wyden (D-Ore.) and Al Franken (D-Minn.) introduced legislation earlier this month to delay the implementation of the Rule 41 amendments until July 2017, arguing that Congress needs more time to determine whether they put citizens’ privacy at risk.

The bill, called the Review the Rule Act, must be passed before Dec. 1 to prevent the amendments from taking effect.

Caldwell noted Monday that current law “already permits investigators to apply for a warrant to search multiple places, accounts or devices at the same time.” The amendments serve only to simplify this process by identifying the appropriate court to consider the warrant.

Caldwell also said worries over the privacy of cyberattack victims are misplaced. The amendments do not give investigators the unfettered ability to search individuals’ hacked devices and instead apply only to the venue in which such search warrants are considered.

“The Constitution already forbids mass, indiscriminate rummaging through victims’ computers, and it will continue to do so if the venue rule change goes into effect,” Caldwell said. “By contrast, blocking the amendments would make it more difficult for law enforcement to combat mass hacking by actual criminals.”

Correction

A previous version of this story misstated when the Electronic Frontier Foundation called the advisory committee on criminal rules an “obscure committee.”

This article has been updated to reflect changes DOJ made to its blog post.

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