A bipartisan group of senators has proposed legislation that would prohibit law enforcement agencies from indiscriminately hacking users on the Internet.
The legislation, “Stopping Mass Hacking,” would prevent a change to Rule 41 of the Federal Rules of Criminal Procedure going into effect in December. The change, which was authorized by the Supreme Court in April, would allow agencies like the FBI to use one warrant to hack an unlimited number of computers using a so-called “botnet” attack.
“These changes are a major policy shift that will impact Americans’ digital security, expand the government’s surveillance powers and pose serious Fourth Amendment questions,” Democratic Oregon Sen. Ron Wyden wrote in an editorial distributed to reporters on Thursday. “It is Congress’ job to make sure we do not let the Executive Branch run roughshod over our constituents’ rights.”
Wyden, who sits on the Senate Intelligence Committee, has taken the lead on the issue over the past several weeks. The issue arose after the Justice Department sought to change the rule in the wake of an investigation into a website accused of producing child pornography. As part of the investigation, the FBI deployed what it refers to as a “network investigative technique,” infecting thousands of computers around the globe with malware allowing users to be tracked.
To date, judges in Massachusetts and Oklahoma have thrown out evidence obtained in the case on the basis that a single warrant was insufficient to authorize the search. The Justice Department is claiming that the search was conducted in the state of Virginia, where the FBI claimed control of the website.
The Justice Department contends the change would not be as harmful as critics suggest. “This rule change would make clear that where the suspect has hidden the location of his computer using technological means, agents know which judge to go to apply for a warrant,” said Peter Carr, a spokesman for the Justice Department. “If agents are investigating criminals who are sexually exploiting children and uploading those videos for others to see, but concealing their location, agents will be able to go to court to obtain a warrant to discover where they are located.” Carr added that one applicable investigation had resulted in the rescue of 38 children.
If Congress fails to reject the proposed rules change, it will go into effect Dec. 1. Cosponsors of Wyden’s bill include Sens. Rand Paul, R-Ky., Tammy Baldwin, D-Wis., and Jon Tester, D-Mt.
“By allowing so many searches with the order of just a single judge, Congress’s failure to act on this issue would be a disaster for law-abiding Americans,” Wyden added. “When the public realizes what is at stake, I think there is going to be a massive outcry: Americans will look at Congress and say, ‘What were you thinking?'”
