Senate Fails to Delay Change to Rule 41 Hacking Powers

A final effort Wednesday by senators from both parties failed to gain passage of a bill that would have delayed a major change to expand the government’s power to use remote searches of computers. The modification of Rule 41 will go into effect Thursday at midnight.
On Wednesday morning, both Sen. Ron Wyden and Sen. Steve Daines asked the Senate to unanimously consent to passage of a bill that would have delayed the change to Rule 41 until March 31, giving lawmakers more time to hold hearings on the matter. The requests were denied after Sen. John Cornyn (R-Texas) objected to them three times.
The change to Rule 41, which has to do with search and seizure, would enable law enforcement agencies to obtain a single warrant to conduct remote searches of any number of computers anywhere in the United States. Wyden, Daines, and other lawmakers have objected to the change, which was approved in April by the Supreme Court, saying that it will grant far too much power to law enforcement and could lead to further damage of innocent victims’ machines. On Wednesday, Wyden said on the Senate floor that the legislature’s refusal to hold any hearings on the topic is a failure of the legislative process.
“The government says it can go forward with this Rule 41 and conduct these massive hacks without causing any collateral damage whatsoever and ensuring that Americans’ rights are protected. But oddly enough the government won’t tell Congress or the American people how it would protect those rights,” Wyden said.
“In effect, the policy is, trust us. I think right at the heart of our obligation is to do vigorous oversight. You would think such a drastic policy change would have to come before Congress but in fact we’ve had no hearings.”
Daines (R-Mont.) said that the Rule 41 modification would make the path to obtaining sweeping remote search warrants too easy.
“They present significant privacy concerns that warrant careful consideration. These changes would remove important judicial safeguards,” Daines said. “We shouldn’t have to sacrifice our rights to privacy.”
Cornyn, in objecting to a delay in the rule change, said there are still enough gates in place to prevent any abuse of the process.
“You still have to have probable cause and the defendant can still change the lawfulness of the search. I think this does strike an appropriate balance,” Cornyn said.
But Wyden said the balance of privacy and security doesn’t just happen; it requires thought and action by lawmakers.
“We can have both privacy and security but it’s going to take smart policies,” he said. “Security and liberty aren’t mutually exclusive, but increasingly the policies coming out of here aren’t doing a whole lot of either.”