The Cable

Supreme Court Widens FBI Hacking Powers

A new version of Rule 41 will allow judges to issue warrants for computers outside their district in some cases.

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The FBI is about to get a bit more power to hack into computers.

The Supreme Court on Thursday approved a change to the federal rules of criminal procedure that grants judges the power to issue warrants to seize information on computers located outside their districts.

Congress has until Dec. 1 to weigh in on the rule change. If it doesn’t, then the new version of so-called Rule 41, which governs the venue for a warrant application, automatically takes effect.

The rule change allows judges to issue warrants to search computers outside their districts if the location of those computers has been “concealed through technological means.”

Currently, judges can issue warrants only within their districts. In an era when computer criminals are using programs such as Tor to hide their physical location, the Justice Department argues that the rules of federal procedure have become hopelessly outdated in dealing with modern technology.

“Criminals now have ready access to sophisticated anonymizing technologies to conceal their identity while they engage in crime over the Internet, and the use of remote searches is often the only mechanism available to law enforcement to identify and apprehend them,” said Peter Carr, a Justice Department spokesman. “This amendment ensures that courts can be asked to review warrant applications in situations where is it currently unclear what judge has that authority.”

Carr said the rule change does not grant the power to carry out searches currently prohibited by law. Remote searches of computers still must abide by Fourth Amendment limits.

Federal investigators and criminal hackers are engaged in an arms race, as both sides adopt increasingly sophisticated tools. Criminal hackers have access to an unprecedented arsenal of hacking tools and cutting-edge technology. Federal investigators complain that encrypted communication tools, for example, frequently stymie their inquiries.

Civil liberties advocates counter that the ubiquity of digital communication devices has spawned a golden age for surveillance, and that agencies such as the FBI have created a threat to privacy in their pursuit of intelligence and digital evidence.

The rule change will probably make it easier for the FBI to use hacking tools in its investigations of online crime. In recent weeks, two judges have ruled in separate child pornography prosecutions that the FBI’s use of hacking tools violated Rule 41’s standard that a warrant can be executed only within the district of the judge who issued it. The rule change would probably allow the FBI more leeway.

Sen. Ron Wyden (D-Ore.) blasted the rule change on Thursday and vowed to take action, but it remains highly unlikely that he will be able to muster congressional backing to rein in the power of the FBI in an election year and on the heels of terrorist attacks in Europe and the United States.

“Under the proposed rules, the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once; and the vast majority of the affected computers would belong to the victims, not the perpetrators, of a cybercrime,” Wyden said in a statement.

Civil liberties advocates and some tech companies, including Google, are outraged at the proposal and argue that the government has managed to use an obscure bureaucratic change to vastly expand its authority to hack computers.

“Instead of directly asking Congress for authorization to break into computers, the Justice Department is now trying to quietly circumvent the legislative process by pushing for a change in court rules, pretending that its government hacking proposal is a mere procedural formality rather than the massive change to the law that it really is,” Kevin Bankston, the director of New America’s Open Technology Institute, said in a statement.

Photo credit: OLI SCARFF/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace, its conflicts, and controversies. @eliasgroll

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