Rule Change would Allow FBI to Go Judge Shopping to Hack into Computers

Monday, November 03, 2014
(photo: Lousi Lanzno, AP)

An obscure federal judicial panel could shortly authorize the Federal Bureau of Investigation (FBI) to pry into personal computers across the nation and even internationally with the flimsiest of notice to a judge about what their looking for and where the computer is located.


The amendment (pdf) the FBI is seeking would allow the bureau to go to a judge in any district to get a warrant that would allow it to spy on computers anywhere and even install malware that would enable agents to download personal data and activate microphones and cameras without the user knowing.


The Advisory Committee on Criminal Rules will meet this week to consider the FBI’s request to modify Rule 41 of the Federal Rules of Criminal Procedure. The changes would include allowing judges to authorize “remote access” to computers “located within or outside that district”  . . . “where the media or information is located has been concealed through technological means.”


“This is an extremely invasive technique,” Chris Soghoian, principal technologist of the American Civil Liberties Union, who will also be addressing the hearing, told The Guardian. “We are talking here about giving the FBI the green light to hack into any computer in the country or around the world.”


The provision that would allow a judge in one district to authorize searches of computers in another would allow the bureau to go “judge shopping” for one who might be most likely to grant a warrant.


Some civil rights activists are concerned that such a significant rule change is being decided by such an obscure panel with little public notice. “This is an investigative technique that we haven’t seen before and we haven’t thrashed out the implications,” Jennifer Granick, director of civil liberties at the Stanford Center for Internet and Society, told The Guardian. “It absolutely should not be done through a rule change—it has to be fully debated publicly, and Congress must be involved.”


The amendment is so broadly worded that it could allow the FBI unprecedented access to computers in other countries, according to Joaquim Moreira Salles of ThinkProgress, resulting in “possibly the broadest expansion of extraterritorial surveillance power since the FBI’s inception,” according to Ahmed Ghappour, an expert in computer law at University of California.

-Steve Straehley


To Learn More

FBI Demands New Powers To Hack Into Computers And Carry Out Surveillance (by Ed Pilkington, The Guardian)

FBI Seeks Massive Expansion Of Surveillance Powers (By Joaquim Moreira Salles, ThinkProgress)

Written Statement Of The Center for Democracy & Technology Before The Judicial Conference Advisory Committee on Criminal Rules (pdf)


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