Civil Liberties Groups Argue Against DOJ's Petition For Expansion Of Hacking Powers And Judicial Jurisdictions

from the please,-sirs,-may-we-have-a-whole-fuckload-more? dept

The DOJ wants the FBI to have the ability to run amok, hacking overseas computers and accessing electronics wherever and whenever, with a minimum of hassle. The DOJ's proposal, which was presented to a judicial advisory committee in September, asks for some major alterations to Rule 41.

As Mike explained back in September, what the DOJ is proposing is an expansion of power that takes the necessarily limited exceptions applied to terrorism investigations and applies them to everyday criminal investigations. Then it goes further, wiping out jurisdictional limitations.
The provision, known as Rule 41 of the federal rules of criminal procedure, typically allows judges to issue search warrants only within their judicial district. But the government has asked to alter this restriction to allow judges to approve electronic surveillance to find and search a computer's contents regardless of its physical location, even if the device is suspected of being abroad.
This expansion is supposedly justified by the technological arms race law enforcement agencies (like the DOJ and FBI) continuing to claim they're somehow losing, despite billions of tax dollars and years of perfecting their skills. Rather than work within the confines of the Fourth Amendment and other related considerations, the government is looking to create a broad and permanent downhill slope to ease its investigative burden.

The DOJ is seeking expanded powers for the FBI, including the permission to implant malware and infiltrate overseas networks, just like its big brother, the NSA. In addition to asking for the codification of Fourth Amendment violations, the DOJ is also asking for permission to place the US in a number of diplomatically tenuous situations with other countries as a result of its agents' actions.

Unsurprisingly, there's plenty of outside resistance to this proposed change.
Technology experts and civil-liberties groups strongly oppose the proposed rule change. On Wednesday, several of them testified before the rule-making committee urging a rejection of the Justice Department's proposal. The rule change, they argued, would be substantive and not merely procedural, making it beyond the intended scope of the advisory panel. They also warned that the expansion would threaten the Fourth Amendment's strict limitations on government search and seizures, and allow the FBI to violate the sovereignty of foreign countries.
The panel hearing the inquiry didn't seem very impressed with those taking the side of the American public.
The judicial panel on Wednesday did little to tip its hand on the issue, but it did aggressively question several witnesses as to what alternative they would prefer that allows federal investigators to keep up with and catch elusive cybercriminals.
This, too, is unsurprising. The courts have a long history of showing deference to law enforcement agencies, and the increasing use of terrorism as a rhetorical device has only made this tendency worse. While there has been some pushback in the wake of the Snowden leaks, by and large the judicial viewpoint is that fighting crime is a noble pursuit and those engaged in this battle should be given every tool needed to succeed, even if that means shaving a few inches off the top of Americans' civil liberties.

But those arguing against this proposed change made a very valid point during their time in front of the panel: if we have to look to legislators for relief, so should the DOJ.
"I empathize that it is very hard to get a legislative change," said Amie Stepanovich, senior policy counsel with Access, a digital-freedom group. "However, when you have us resorting to Congress to get increased privacy protections, we would also like to see the government turn to Congress to get increased surveillance authority."
James Comey, of course, will be continuing his attempt to do exactly that. His speaking appearances are still largely composed of encryption complaints, and when not publicly demanding that tech companies get in bed with the FBI, he's meeting secretly with legislators in hopes of bending the nation's laws to his will.

Oddly, the DOJ has previously claimed the FBI doesn't need warrants to hack foreign computers -- an argument it made during the evidentiary hearings in the Dread Pirate Roberts/Silkroad case. Now, it's petitioning to grant US judges the power to sign off on warrants that can be used anywhere -- even overseas. If the panel agrees to this alteration, it would actually limit the FBI's extraterritorial activities, at least as described in federal court.

What this proposal sounds like is an attempt to expand its domestic powers, with a small nod towards extraterritorial activities thrown in as an expendable demand -- something to be given up to keep the domestic power expansion it really wants. Rights of foreigners are similarly expendable and are only respected when diplomatically expedient. Here in the US, it's a bit trickier, and that's the part the FBI actually wants to "simplify."

Filed Under: doj, fbi, hacking, rule 41


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  • icon
    That One Guy (profile), 7 Nov 2014 @ 3:15pm

    If this matter is being discussed in court, someone needs to bring up the fact that if they give the go-ahead for the DOJ/FBI to hack foreign computers, they are opening up the gates for other countries, and other governments, to do the same to the computers in the US, whether private or public.

    The government may not care(and in fact I'm sure they don't) whether or not the computer systems in the US get hacked(because let's face it, they'd just use that to justify demanding even more power, and authority), but perhaps the judges will, or at least won't want to admit to sharing the government's stance on the subject.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Nov 2014 @ 3:36pm

    Alternatives?

    I was under the impression that the 4th Amendment was a bright line. If you're failing to find a way around it, you might be doing it wrong.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Nov 2014 @ 3:59pm

    I always thought some how we were different from Russia and China. Now comes this and suddenly I am seeing less and less difference between those countries and ours. We're already past the slippery slope and well on the way to the bottom.

    rUSsia is now something that has to be considered.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Nov 2014 @ 7:23pm

      Re:

      Don't forget the torture, extrajudicial killings (of US citizens), funding the worst regimes in the world, imprisonment of millions of citizens for buying the product that the USG is selling, persecution of whistle blowers and journalists, spooks lying to and hacking the legislative branch with impunity, spooks ignoring the judiciary with impunity (even the secret, fake court that rewrote the constitution, in secret).

      God Bless America.

      reply to this | link to this | view in chronology ]

      • icon
        tqk (profile), 7 Nov 2014 @ 8:19pm

        Re: Re:

        ... imprisonment of millions of citizens for buying the product that the USG is selling ...

        Er, which one is that? Terrorism, regime change, cocaine & heroin, a pacified/sanitized historical record, the illusion of constitutional freedoms, ...?

        As for the story, I was always taught that the FBI was limited to domestic activities, and the CIA was limited to foreign ones. Why's the FBI wanting to muscle in on the CIA's turf? Is this just the FBI asking for parity with the CIA considering the latter's often ignoring of this rule?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Nov 2014 @ 8:41am

        Re: Re:

        This proves America is exceptional - at being blind

        reply to this | link to this | view in chronology ]

  • identicon
    0, 7 Nov 2014 @ 7:17pm

    I'm gonna miss the internet.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 7 Nov 2014 @ 9:36pm

    I Want to be Respected Again

    The panel hearing the inquiry didn't seem very impressed with those taking the side of the American public.

    "American public" is irrelevant. What is relevant is "Citizens of the United States of America". I am one. I so wish they would stop treating us all like alien terrorists.

    reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 8 Nov 2014 @ 12:02am

      Re: I Want to be Respected Again

      Oh, please pipe down, peasant. You got your say a few days ago. We don't need to hear from you again for at least a couple of years.

      Sheesh. Now, would someone please turn off that damned camera?!

      reply to this | link to this | view in chronology ]

  • identicon
    Dr Strangelove, 8 Nov 2014 @ 8:48am

    Gentlemen, you can't fight in here! This is the War Room.

    The Pentagon has concluded that computer sabotage coming from another country can constitute an act of war

    http://online.wsj.com/news/articles/SB10001424052702304563104576355623135782718?mod=WSJ_hp_LEFTTo pStories&mg=reno64-wsj&url=http%3A%2F%2Fonline.wsj.com%2Farticle%2FSB10001424052702304563104 576355623135782718.html%3Fmod%3DWSJ_hp_LEFTTopStories


    I guess this means we are declaring war on everyone, but isn't congress supposed to vote on this?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Nov 2014 @ 1:18pm

    ...How about you not act like fucking criminals all the fucking time, Alphabetti Spaghetti?

    reply to this | link to this | view in chronology ]

  • identicon
    Guardian, 9 Nov 2014 @ 4:19am

    "violating" my nations sovereignty

    "violating" my nations sovereignty is an act of war....

    under even the geneva convention it is such. MY HOW HITLER OF YOU FUCKING YANKIES...after my grandfather fought against such tyranny

    i'm beginning to wonder if these terrorists are the bad guys?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Nov 2014 @ 9:00am

      Re: "violating" my nations sovereignty

      i'm beginning to wonder if these terrorists are the bad guys?

      Yes. You're trapped in the perception that those fighting the bad guys are necessarily the good guys. Unfortunately, more often then not, both sides are equally bad.

      reply to this | link to this | view in chronology ]

  • identicon
    Guardian, 9 Nov 2014 @ 4:26am

    so

    so when the fbi attacked servers in edmonton alberta , canada in the late 90's it was actually an illegal act.....

    an act of war.....

    yes i have proof....
    and the fbi got paid right back

    by having there website rooted and the root code placed on a mug and sold inside the usa where the code was visible on the image for the mug....

    this si what shall begin to happen and if its sanctioned and such it means george bush when he said hackers arent terrorists , what he meant to say is just wait we'll make you into ones.

    fuck obama , bush and the usa

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Nov 2014 @ 3:37pm

    Translation: US Tech (worldwide) needs increased distrust.

    reply to this | link to this | view in chronology ]


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