PINDROP BLOG

Senators Say Government Failed to Answer Many Concerns on Rule 41

With three days before a change to a federal rule would alter the way that federal law enforcement agencies can seek warrants to search remote computers, members of Congress worried about the ramifications of the shift say they still are waiting for answers from the Department of Justice on how the new powers would be used.

In late October, nearly two dozen members of Congress sent a letter to Attorney General Loretta Lynch with a number of questions about the change to Rule 41, specifically asking how the department could prevent “forum shopping” for warrants and whether the government would have safeguards in place to prevent damage to innocent users’ devices if they’re searched. The letter also asked whether owning a device that was compromised in an attack, such as a botnet infection, constitutes probable cause for a remote search.

Last week, the Justice Department replied to the letter with a reiteration of the scope of the change to the rule, but did not directly answer many of the questions raised in the original letter. Rule 41 is part of the Federal Rules of Criminal Procedure concerns search and seizure and the proposed change, which the Supreme Court approved in April, will enable law enforcement agencies to obtain a single warrant to search remote computers anywhere in the United States. The change will go into effect on Dec. 1 without action from Congress. There are bills pending that would prevent or delay the enactment of the rule, but they are unlikely to move forward before Thursday.

“The Justice Department’s failure to answer these questions should be a big blinking warning sign.”

The reply from the Justice Department to the letter from 23 members of Congress says that the modification to Rule 41 would simplify the warrant application process and “would not permit indiscriminate surveillance of thousands of victim computers”. However, Sen. Ron Wyden (D-Ore.), one of the lawmakers who signed the letter to Lynch, said there is still much that’s unknown about how the government plans to use the rule after Dec. 1.

“The American people deserve answers to these very basic questions about how our government intends to hack thousands or millions of personal devices with a single warrant,” Wyden said in a statement. “The Justice Department’s failure to answer these questions should be a big blinking warning sign about whether the government can be trusted to carry out these hacks without harming the security and privacy of innocent Americans’ phones, computers and other devices.”

Wyden, along with Sen. Chris Coons (D-Del.), introduced a bill earlier this month that would push back the effective date of the change to Rule 41 to July 1, an effort to give Congress time to investigate the implications of the change. A companion bill has been brought forth in the House of Representatives, as well. In the reply to Wyden, Coons, and the other lawmakers, Assistant Attorney General Peter J. Kadzik said the change to Rule 41 doesn’t give the government any more remote search powers than it already has.

“Simply put, the amendments do not authorize the government to undertake any search or seizure or use any remote search technique that is not already permitted under the Fourth Amendment,” Kadzik said.

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