Lawmakers Press Justice Department on Expanded Police Hacking Powers

Nearly two dozen lawmakers queried the Justice Department today about a controversial expansion of police hacking powers scheduled to take effect Dec. 1.

The change, an update to Rule 41 of the Federal Rules of Criminal Procedure, would allow a single judge to issue a warrant allowing police to hack into computers in multiple judicial districts rather than just the district in which that judge presides.

The judge also could issue a warrant to search a computer or device when the user has masked the device’s location.

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The group of lawmakers, led by Sen. Ron Wyden, D-Ore., and Sen. Mike Lee, R-Utah, among others, wants to know how DOJ will prevent police and prosecutors from “forum shopping” for friendly judges under the revised rule. They also ask how police will ensure they don’t accidentally damage innocent people’s computers or invade their privacy.

The change was approved by the Supreme Court and will go into effect unless Congress intervenes, a standard practice for procedural legal rule changes.

The Justice Department says the change will speed investigations of child pornography and other digital crimes that typically span multiple districts. The power will also help police investigate and combat digital attacks conducted with botnets—armies of zombie computers or other devices whose digital power has been hijacked without their owners’ knowledge or consent.

Digital rights activists argue the change violates Fourth Amendment protections against unreasonable searches and would erode privacy rights.

“We are concerned about the full scope of the new authority that would be provided to the Department of Justice,” the lawmakers write. “We believe that Congress—and the American public—must better understand the department’s need for the proposed amendments, how the department intends to use its proposed new powers, and the potential consequences to our digital security before these rules go into effect.”

The lawmakers ask how the Justice Department will ensure it doesn’t invade the privacy of innocent people whose computers are being used as botnets, whether it will remotely kick hackers out of those computers, and if and when it will let innocent people know their computers were searched.

They also ask if law enforcement will remotely disable suspect computers and if it has ever done this in the past.

Given the short time frame, the lawmakers are asking DOJ to respond within two weeks. That would mean any effort to stop the rule change from taking effect would have to happen during the lame-duck session after November’s presidential election.

Other letter signers are: Senate Judiciary Committee ranking member Sen. Patrick Leahy, D-Vt.; House Judiciary Committee ranking member Rep. John Conyers, Jr., D-Mich.; Rep. Ted Poe, R-Texas; Sen. Tammy Baldwin, D-Wisc.; Sen. Chris Coons, D-Del.; Sen. Steve Daines, R-Mont.; Sen. Al Franken, D-Minn.; Sen. Mazie Hirono, D-Hawaii; Sen. Jon Tester, D-Mont.; Sen. Elizabeth Warren, D-Mass.; Sen. Martin Heinrich, D-N.M.; Rep. Justin Amash, R-Mich.; Rep. Jason Chaffetz, R-Utah; Rep. Judy Chu, D-Calif.; Rep. Steve Cohen, D-Tenn.; Rep. Suzan DelBene, D-Wash.; Rep. Louie Gohmert, R-Texas; Rep. Hank Johnson, D-Ga.; Rep. Ted Lieu, D-Calif.; Rep. Zoe Lofgren, D-Calif.; and Rep. Jerrold Nadler, D-N.Y.