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FBI Seeks Expanded Authority for Warrants to Hack Computers

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By Mark Wilson, Esq. on November 05, 2014 8:27 AM

It's no secret that the FBI doesn't much like your encryption. Its director, James Comey, has said as much. It's lobbied Congress to force device manufacturers to put "backdoors" into technology so the FBI can get inside. (Although, if you're Comey, you'd call that a "front door.")

In its unparalleled quest to know what you ate for breakfast without checking your Instagram profile, the FBI wants to be able to hack any computer, anytime, anywhere.

What's This Rule Change?

The Guardian reported last week on a hearing of the Advisory Committee on Criminal Rules -- happening today ! -- in which the FBI will lobby for a proposed change to Rule 41 of the Federal Rules of Criminal Procedure, which governs issuing search warrants. Currently, the rule allows only a judge located within the district where the subject to be searched is located to issue a warrant.

The proposed rule change (skip to page 338) would grant authority to any judge, anywhere in the country, to issue a search warrant "to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district" if the location of the district where the media are located has been concealed, or the computers belong to the government or financial institution and are located in five or more districts.

What's the Effect?

The purpose of this rule change, says The Guardian, is to allow agents to get a warrant to hack into computers that have had their location masked through Tor or another anonymizing software.

Privacy advocates, such as those from the ACLU and the Electronic Frontier Foundation, will be present at the hearing in Washington, D.C., to argue against the rule change, but another group will also be there: actual computer experts.

Computers scientists from Columbia University, the University of Pennsylvania, and Worcester Polytechnic Institute submitted comments expressing concern at the FBI's proposal. Allowing the FBI to infect massive amounts of computers with malware, they say, could potentially spread the malware in unpredictable ways to machines that weren't originally targeted in the warrant, compromising the privacy and security of people not under investigation.

Privacy advocates also raise the problem of "forum shopping," in which the FBI would apply for a warrant from judges it knows are sympathetic to electronic searches. Right now, the government is stuck with the judge in a particular jurisdiction, but the rule change would allow the FBI to get a warrant from any magistrate judge in the country. Curiously, the FBI itself actually addresses concerns over judge shopping when it observes that one motivation for passing the amendment is that "a magistrate judge may decline to issue the requested warrant." Solution? Let any magistrate issue the warrant!

Comments on the rule changes will be open through February 17, 2015.

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