Fight Over FBI Hacking Powers Comes Down to the Wire

A top Justice Department official pushed back Monday against critics of an FBI hacking powers expansion set to take effect Thursday, saying the critics are confusing substantive issues with procedural ones.

The debate centers on an amendment to Rule 41 of the Federal Rules of Criminal Procedure, which 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 rule expansion was approved by the Supreme Court in April and will take effect Thursday unless Congress intervenes.

Digital rights activists and civil libertarians worry the expansion will bend the 4th Amendment prohibitions against unreasonable search and seizure because it gives the Justice Department too much latitude to break into computers and other devices owned by innocent bystanders that have been hijacked by hackers.  

Assistant Attorney General Leslie Caldwell took aim at that criticism in a lengthy blog post, saying the “amendments do not authorize the government to undertake any search or seizure or use any remote search technique that is not already permitted under the Fourth Amendment” and that “the constitution already forbids mass, indiscriminate rummaging through victims’ computers.”

If the rule change does not take effect, Caldwell wrote, that will aid criminal hackers and child pornography rings by stymying law enforcement efforts to track them.

“No one familiar with the harm caused by anonymized child sexual abuse, anonymized firearms trafficking or overseas malware can seriously contend that it makes more sense for Americans to fear federal investigators seeking search warrants from independent federal courts,” Caldwell wrote.

Recently introduced bills in the Senate and House would delay implementing the rule change for about nine months so Congress can more fully debate it. Advocates for those bills have raised concerns about the rule change’s language but not directly opposed it.

The bills have not been debated in either chamber.

Keith Chu, a spokesman for Sen. Ron Wyden, D-Ore., one of the bill’s sponsors, acknowledged it’s “an uphill battle” to get Congress to take actions on the bill this week, but said the senator “will continue to push Congress to do its job and take a close look at this sweeping rule change before it goes into effect.”

Caldwell’s blog post does not directly address concerns raised by lawmakers that the expanded rule will encourage investigators to “forum shop” for judges who are more willing to issue hacking warrants. For example, if a child pornography ring or botnet attack affects dozens of judicial districts, investigators may seek warrants in a single district where they believe judges are more likely to grant such warrants.

Wyden and Sen. Chris Coons, D-Del., slammed the Justice Department for what they said was an evasive reply to a query about forum shopping last week.

Caldwell penned two previous blog posts advocating for the rule change.

“If the rules go into effect on Dec. 1, we do not expect a sudden end to public discussion about their wisdom and effectiveness,” she wrote Monday. “We look forward to demonstrating to Congress and the public why these venue changes are essential to protecting Americans, and especially American children, from online criminals.”