In April, the US Supreme Court proposed a rule change to a procedural rule known as Rule 41.
The rule change would allow judges to issue warrants to law enforcement agencies to hack into computers anywhere, even if the investigation is outside their jurisdictions regardless of people who are not the suspect.
The amended Rule 41 came into effect on 1st December 2016. The Department of Justice has described the amendments necessary procedural update in the light of increasing jurisdictional cybercrime and use of anonymization tools.
Privacy advocates like Edward Snowden believe that the amendments to Rule 41 which regulates the legal search and seizure, had put us back to the days when America ruled by an authoritarian. “The [FBI] is now openly issuing the general warrants that, in 1760, led John Adams to the first dream of independence,” Snowden wrote in a tweet.
The new amendment will allow agencies to obtain a ‘remote-access’ warrant for search and seizure of digital content. The Rule reads:
A magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a 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: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.
In 2015, the FBI performed a remote sting operation by infecting tracker program inside suspects’ computers who were visiting websites related to pedophilia on the Dark Web. The agency was able to identify over 1500 pedophiles. However, the operation was done based on a single warrant, which the defense lawyers were able to counter that the victims were outside the jurisdiction of the warrant.
The amendment in the federal rule 41 addresses this issue which would allow warrant even if the suspects are outside jurisdiction.
What concerns many privacy advocates are the innocent citizens who can become collateral in these searches. The new rule would allow law enforcements agencies to copy all the materials in the hacked devices.
EFF writes in a blog post, “This is a dangerous expansion of powers and not something to be granted without any public debate on the topic.”
Snowden believes that Rule 41 is the slap in the face of Fourth Amendment. Back in the 1760s, John Adams sought to ensure these invasive and unauthorized searches and seizures were never carried out again while crafting the Fourth Amendment. In which, he wrote, “a warrant must specify the “persons or objects of search, arrest, or seizure.”