When the U.S. Supreme Court authorized changes to Rule 41 that would expand the government’s hacking authority, Senator Ron Wyden immediately indicated that he would try to block the ruling. Now, Wyden and several other senators have introduced legislation to counter the Rule 41 changes and limit the hacking power extended to the government.
In the past, Rule 41 has restricted magistrate judges from issuing search warrants beyond their own districts — which has prevented them from authorizing the Justice Department to hack computers located elsewhere. In late April, the Supreme Court changed Rule 41 to allow judges to issue search warrants for electronic media beyond their normal reach.
The change says it will allow judges 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,” and will go into effect on December 1 if Congress does not try to block it.
Wyden’s new legislation, titled the Stopping Mass Hacking Act, aims to block the Rule 41 changes. Wyden has partnered with Senators Rand Paul, Tammy Baldwin, Steve Daines, and Jon Tester on the Act (which is amusingly abbreviated as the SMH Act). The senators want to limit judges’ authority to authorize hacking outside their districts, and limit the number of computers that they can approve for hacking with a single warrant.
Wyden has argued that the public needs to know more about government hacking before allowing it to take place at higher volume and with greater frequency.
“This is a dramatic expansion of the government’s hacking and surveillance authority. Such a substantive change with an enormous impact on Americans’ constitutional rights should be debated by Congress, not maneuvered through an obscure bureaucratic process,” Wyden said in a statement announcing the bill.
A companion bill is expected to be introduced in the House of Representatives.
Update 12:25 p.m. PT: The Justice Department defended the Rule 41 changes in a statement provided to TechCrunch, saying that the adjustments amount to a small procedural difference in the rule rather than a Constitutional overhaul.
“The amendment would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law, and the amendment does not change any of the traditional protections and procedures, such as the requirement that the government establish probable cause,” DOJ spokesperson Peter Carr said. “Rather, the amendment would merely ensure that some court is available to consider whether a particular warrant application comports with the Fourth Amendment.”
Carr stressed that the change to Rule 41 would enable the Justice Department to more effectively prosecute cybercrime. “This rule change would permit agents to go to one federal judge, rather than submit separate warrant applications to each of the 94 federal districts. That duplication of effort makes no sense,” he added.