Google Calls FBI's Plan to Expand Hacking Power a 'Monumental' Constitutional Threat

Google is warning that the government's quiet plan to expand the FBI's authority to remotely access computer files amounts to a "monumental" constitutional concern.

The search giant submitted public comments earlier this week opposing a Justice Department proposal that would grant judges more leeway in how they can approve search warrants for electronic data.

The push to change an arcane federal rule "raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide," wrote Richard Salgado, Google's director for law enforcement and information security.

The provision, known as Rule 41 of the federal rules of criminal procedure, generally permits judges to grant search warrants only within the bounds of their judicial district. Last year, the Justice Department petitioned a judicial advisory committee to amend the rule to allow judges to approve warrants outside their jurisdictions or in cases where authorities are unsure where a computer is located.

Google, in its comments, blasted the desired rule change as overly vague, saying the proposal could authorize remote searches on the data of millions of Americans simultaneously—particularly those who share a network or router—and cautioned it rested on shaky legal footing.

"The serious and complex constitutional concerns implicated by the proposed amendment are numerous and, because of the nature of Fourth Amendment case law development, are unlikely to be addressed by courts in a timely fashion," Salgado wrote.

The Justice Department has countered that the rule change amounts to a small-scale tweak of protocol, one that is necessary to align search-warrant procedures with the realities of modern technology. In its own comments, the Justice Department accused some of opponents of the rule change of "misreading the text of the proposal or misunderstanding current law."

"The proposal would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under law," Deputy Assistant Attorney General David Bitkower said in comments filed late last year. He added that investigators are "careful to avoid collateral damage when executing remote searches, just as [they are] careful to avoid injury to persons or damage to property in the far more common scenario of executing physical search warrants."

Google is the only major tech firm to weigh in on the little-noticed proposed rule change, for which the public comment period ended on Tuesday. Privacy and civil-liberties groups, such as the American Civil Liberties Union, and some technology experts have also condemned the plan as a potential threat to the Fourth Amendment's protection against unreasonable government search and seizures.

A change this broad should only be enacted by Congress, they argue.

"I empathize that it is very hard to get a legislative change," Amie Stepanovich, senior policy counsel with Access, a digital-freedom group, told the judicial panel during a meeting called to review the proposal in November. "However, when you have us resorting to Congress to get increased privacy protections, we would also like to see the government turn to Congress to get increased surveillance authority."

Google echoed that concern in its comments, saying the panel should "leave the expansion of the government's investigative and technological tools, if any are necessary or appropriate, to Congress."

The rules committee is expected to render a decision on Rule 41 in the coming months, though the amendment faces several additional hurdles before it can be adopted. That process includes a review by the Supreme Court and, finally, Congress, which would have seven months to act on the proposal. Failure to enact legislation to "reject, modify, or defer the rules," however, would result in them automatically taking effect, according to policies that govern U.S. courts.

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