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Congress Pushes Justice Department for Data on Government Hacking

A group of more than 20 members of Congress from both parties is asking the Department of Justice for details about how the government plans to use expanded lawful hacking authority that would come online in December if a proposed change goes into effect.

The letter raises a number of questions about the way that changes to Rule 41 of the Federal Rules of Criminal Procedure would be implemented. The change would allow law enforcement to obtain one warrant from a judge for a remote search of any devices anywhere in the United States. Some lawmakers and privacy advocates worry that the change would lead to a massive expansion of government hacking of suspects’ computers.

Sen. Ron Wyden (D-Ore.) has been quite vocal in expressing concerns about the proposed to change to Rule 41, and he was one of the lawmakers who signed the letter sent to Attorney General Loretta Lynch Thursday.

“We are concerned about the full scope of the new authority that would be provided to the Department of Justice,” the lawmakers wrote in the letter. “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.”

Among the issues the legislators raise in the letter are:

  • How the government intends to prevent forum shopping by prosecutors seeking court approval to hack into Americans’ devices
  • How the government will prevent collateral damage to innocent Americans’ devices and electronic data when it remotely search devices such as smartphones or medical devices
  • Whether the government intends to use this new authority to search and “clean” Americans’ computers

The change to Rule 41 is set to go into effect on Dec. 1 unless Congress passes a law to prevent it. Wyden has said that he believes the change would have a negative effect on Americans who are not suspected of any criminal activity.

“We know that Rule 41 would be a massive expansion of government hacking, putting at risk the liberty of the American people. There’s no telling what kind of impact secret government malware could have on our devices, on the networks that run our hospitals, electric grids and transportation systems,” Wyden said in a speech earlier this year. “The changes leave Americans more exposed and of course put at risk their liberty.”

In the letter to Lynch, the lawmakers ask specifically how the Department of Justice would protect the private data of innocent Americans whose devices are searched remotely.

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