Compliance Management, Threat Management, Privacy

Justice’s Caldwell lauds Rule 41 changes, EFF, other orgs start campaign to thwart

As Congress mulls amendments to Rule 41 that digital rights groups like the Electronic Frontier Foundation (EFF) say will give the government expanded hacking powers, Leslie Caldwell, Assistant Attorney General for the Justice Department's Criminal Division, in a Tuesday blog post said the changes do not run counter to the Fourth Amendment and would construct a “court-supervised framework” for law enforcement to “successfully investigate and prosecute” cybercrime cases.

“The amendments would not authorize the government to undertake any search or seizure or use any remote search technique, whether inside or outside the United States, that is not already permitted under current law,” Caldwell wrote, noting that remote searches are not new and the warrants for those searches are issued under the current rule. “Most courts already permit the search of multiple computers pursuant to a single warrant so long as necessary legal requirements are met.”

The Judicial Conference Advisory Committee on Criminal Rules voted 11-1 earlier this year to modify Rule 41. As the rule now stands, judges can only approve search warrants for materials within their own judicial district – modified, courts would have the ability to grant search warrants for electronic information located outside their judicial district.

The proposed changes drew immediate push back from a variety of organizations, including Google and a number of other civil rights and civil liberties groups. Google Director of Law Enforcement and Information Security Richard Salgado wrote that “the term “remote access” is not defined” and explaining “sample search warrants submitted by the DOJ to the Committee indicate that “remote access” may involve network investigative techniques, or NITs, which include, for example, the installation of software onto a target device to extract and make available to law enforcement certain information from the device, including IP address, MAC address, and other identifying information.”

Justice has spoken out in favor of the amendments, set to go into effect December 16, and which Caldwell, in this latest post, noted had gone through three years of deliberation that included written comment and public testimony.

The rule changes would apply only “in two narrow circumstances” – where a suspect under investigation had “hidden the location of his or her computer using technological means” and when a criminal has hacked computers located in multiple jurisdictions (five or more). In the latter getting simultaneous search warrants for each could thwart investigators' efforts “to liberate computers infected with malware.” The proposed amendment, Caldwell contended, “would not permit indiscriminate surveillance of thousands of victim computers,” which she said was already prohibited and would continue to be even after the amendments took effect.

But the EFF, the Tor Project and other groups are hoping to mobilize website operators and citizens to block the amended rule as part of a campaign. The partnership of more than 40 organizations will hold a “day of action,” according to an EFF release that scolded the government for going outside the procedural change process to grab greater investigatory powers.

“Make no mistake: these changes to Rule 41 will result in a dramatic increase in government hacking,” EFF Activism Director Rainey Reitman said in the release. “The government is trying to avoid scrutiny and sneak these new powers past the public and Congress through an obscure administrative process.”

And Kate Krauss, director of public policy and communications for the Tor Project warned in the same release that the “rules will give the Justice Department new authority to snoop” into computers of journalists, members of Congress, diplomats, human rights activists and other Tor users “who urgently need its protection to safeguard their privacy and security.”

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