Rule 41 Government Remote Hacking

The Judicial Conference of the United States has an Advisory Committee on Criminal Rules that has the power to change court procedures. This committee made a proposal over a year ago to amend Rule 41 of the Federal Rules of Criminal Procedure, the rule that governs the search and seizure of persons or property. This amendment will grant more powers to law enforcement agencies to conduct surveillance and even hack targets. This means that government hacking into mobile phones, the remote seizure of personal computers, and the like will become legal. The proposed amendment is with Congress right now, and if they do not reject it then it will automatically come into effect on the first of December this year. The power to hack and remotely take control of people’s devices could easily become the rule that federal courts in the US will have to follow.

The Federal Rules of Criminal Procedure govern how federal criminal prosecutions are managed. The rules cover all the boring details of setting court holidays and fixing typos, but they can also be manipulated cover more than just the procedural details of judicial operations. The proposal for changes to Rule 41 is not about routine paperwork or adjusting schedules. The changes affect the fundamental rights of law enforcement targets. This must not be allowed, especially when the proposed changes are about matters that Congress has already rejected in the past. Asking for powers to hack people has never been acceptable because it is unconstitutional and also violates international human rights.

Remote Search and Seizure

If Rule 41 is amended as the Advisory Committee on Criminal Rules proposes, any federal court judge in the country will be able to give a requesting law enforcement agency a warrant for the remote search and seizure of digital data. This of course also means that the warrant will include provisions for remote access to that data, and permission to make copies thereof.

The amendment was proposed for two basic reasons. First, there is a need to get to data that has been made unavailable through security measures like encryption. Allowing the government to hack computers is basically a means to defeat the methods of protection that people have placed on their personal devices to keep sensitive information away from prying eyes. The new provision also allows for situations where the location of the data has been masked through technical means. This could refer to the use of personal VPNs, the Tor network, or other means of obfuscating a data trail like simply denying apps access to smartphone location data and changing the location setting on an online service to get better content or more relevant results.

Second, there is a need to gain access to data that is on devices that have been damaged or that are spread over 5 or more districts. So, if some of the data that is being sought is in one of these districts, a judge in that district will have the power to issue the warrant. This is not just about the technicalities of jurisdiction, however. We can understand to some extent why law enforcement keeps pushing for access so that they can gather evidence for criminal investigations. The problem is that legalizing the hacking that is required to gain remote access is a violation of existing rights.

More Harm than Good

The right to privacy entails the right to use tools that aid in the preservation of that right. There are many threats to our privacy, which go from nosy marketers to cybercriminal activities. Changing a rule so that it specifically allows the government to violate that right is wrong in the first place, and opening people up to resulting security threats makes it worse. Aside from the average citizen’s privacy, there are others with special circumstances who are put in even greater danger. Victims of abuse and other forms of violence will no longer have these tools that allow them to safely seek help. Journalists and their sources who already risk their freedom and lives to report the news from unfriendly locations will be exposed to retaliatory actions.

Our judges are skilled in the knowledge and interpretation of the law, but not often in the ways of the Internet and digital life. The amendment allows any judge in the US to grant permission to hack and take any data within his or her jurisdiction without requiring any understanding of how this can harm the owner of that data. In some cases, the victims may not even technically own the data, but are being used by criminals to purposely cover their trail. Botnets are commonly used by cybercriminal organizations to take charge of innocent people’s computing power and use it for their illegal activities. The trail will lead back to these innocents, and their devices will be broken into, exposing all the data that actually does belong to them. Victims already, they will be violated yet again.

The government is not very careful when it comes to security, and the malware that they will design and use to hack into computers and gain remote access can be manipulated. Cybercriminals are much more adept at dealing with malware and the like, and they would likely be easily able to hijack the government’s malware and use it for their own purposes. This puts botnet victims in greater danger as more sensitive data becomes easily accessible to criminals.

The potential victims of the Rule 41 amendment are not limited to US residents. The rule will grant US judges the power to issue warrants, but these warrants can cover more than just the computer systems in their individual jurisdictions. Remember, all that is needed is one judge in one district where some data is located. Then all the other devices in whatever districts they may be located, whether in the US or abroad, can be hacked.

Lawmaking should be left to the lawmakers, the members of Congress who are trained to look into the rights and civil liberties of the people that every piece of legislation affects. This proposed amendment to Rule 41 has bypassed the proper procedures that ensure protection for the people. It forces them, the people who the government is supposed to represent, to give up their rights and freedoms so that the spy community can have a field day.

Consider Yourself Notified

The public must be notified of any new procedural rules that are set before Congress. It is part of a statutory process that has not yet been fulfilled. The Supreme Court handed the proposed amendment to Congress in April, but there has not yet been any call for public debate or even a discussion among pubic officials regarding its implications. The process also allows the public time to comment on the proposed changes, which is now just over 6 months and counting down to December 1st. Access Now has made its case, also representing the Electronic Frontier Foundation, regarding the amendment. They are both interested in the protection and expansion of digital rights and freedoms, including privacy and innovation. But the ammunition that they have is not enough, and Congress needs to know what the people have to say about a judicial rule that would tear away at their rights.

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