Starting Tomorrow, FBI Will Be [Legally] Able to Go on a Mass Hacking Spree with One Single Warrant
Remember the "one warrant to rule them all" that the FBI was policing for? It is going into effect, tomorrow.
On Thursday, with little opposition except for the outrage from a few lawmakers and privacy activists, the FBI is getting the one warrant that will enable it to hack into any device it wants. The changes to Rule 41 of the Federal Rules of Criminal Procedure, which governs how search warrants can be authorized, would unprecedentedly expand the US government's hacking powers.
Three senators in a last-ditch attempt tried to at least have the Congress discuss the new changes. The efforts failed Wednesday, as the new changes go into effect starting December 1, despite concerns over the privacy rights of innocent Americans and possible abuse of the upcoming Donald Trump's administration.
The new Rule 41 and FBI's mass hacking capabilities
The new rules essentially mean that a Department of Justice official will be able to get a warrant that allows the FBI to legally hack millions of devices from a single judge, as they will now be able to allow searches outside of their own jurisdictions. Currently, Magistrate judges can only order searches within the jurisdiction of their court, which is limited to a few counties.
The rules violate the Fourth Amendment, which requires "that the place to be searched be specifically described." Without this requirement, multiple innocent parties could be affected by a remote search. The rules may also violate international laws as it authorizes extraterritorial searches that circumvent the MLAT process.
"At midnight tonight, this Senate will make one of the biggest mistakes in surveillance policy in years and years,” said Senator Ron Wyden who along with two other Senators offered measures to delay or rein in the new FBI powers.
"Without a single congressional hearing, without a shred of meaningful public input, without any opportunity for senators to ask their questions in a public forum, one judge with one warrant would be able to authorize the hacking of thousands, possibly millions of devices, cell phones and tablets."
How FBI used the Playpen case to push for changes
The efforts to legalize FBI's mass hacking campaigns gained momentum in 2015 when the agency seized a dark web child pornography site and ran it to gather evidence. The agency hacked into over 8,000 computers in 120 different countries using a single warrant, issued by Magistrate Judge Theresa C Buchanan in the Eastern District of Virginia.
Over fourteen courts decided to throw evidence obtained by this operation, as it was found that the warrant wasn't properly obtained. Privacy activists have argued how the agency didn't know that it was running an operation with a wrong warrant. In another case, the agency was denied a warrant when it failed to prove that the computer, they wanted to hack was in the federal district where the warrant was sought. The agency and the DoJ have been since pushing for reforms to the Rule 41.
Not many are aware of the scope of this online search warrant. The new Rule 41 will dangerously expand the government's surveillance powers, as the intelligence agencies will seek warrants in districts where a judge is most likely in favor to grant them. Current measures ensure that no single judge can wield such a power.
"There is a challenge when cybercriminals use the internet and social media to prey on innocent children, to traffic in human beings, to buy and sell drugs," said Republican Senator John Cornyn who objected to extending the discussion period or modifying the new rules. "There has to be a way for law enforcement, for the federal government, to get a search warrant approved by a judge based on a showing of probable cause to be able to get that evidence so that the law can be enforced and these cybercriminals can be prosecuted.”
The Electronic Frontier Foundation, which has led the opposition, said the rule can still change after tomorrow. "That rule change is set to go into effect on December 1 despite the fact that Congress has not yet weighed in or even held a single hearing. The fight will continue after December 1, since Congress has the ability to roll back the rule change once it goes into effect."
Lawmakers and privacy activists were hoping to block the new changes before the new administration takes over. President-elect Trump has shown little interest in advocating for Americans' protection from government intrusion.
"I was concerned about this before the election, but we know now that the administration - it’s a new administration that will be led by the individual who said he wanted the power to hack his political opponents the same way Russia does,” Wyden said.