DOJ Insists That Rule 41 Change Is Not Important, Nothing To See Here, Move On Annoying Privacy Activist People

from the try-that-one-again? dept

We've been talking a lot about Rule 41 lately around here. As we've discussed, the DOJ had pushed for an update to the rule, basically granting the FBI much greater powers to hack into lots of computers, including those abroad (possibly creating diplomatic issues). We've been discussing the problems with the DOJ's proposed change for years, and we haven't been alone. Civil liberties groups and tech companies have both blasted the plans, but to no avail.

Back in March, a judicial panel approved the DOJ's proposed changes, and the Supreme Court gave its blessing a month later. The rule changes are set to go into effect on December 1st if they're not stopped. Senators Ron Wyden and Rand Paul have introduced a bill to block them, while the EFF, Tor and friends have kicked off a big No Global Warrants campaign, encouraging Congress to block this change.

The DOJ is being fairly proactive in trying to brush aside concerns about the Rule 41 change, and earlier this week put up a blog post insisting that there's nothing to see here at all, and everyone who's worried should just move along already.
The amendments do not change any of the traditional protections and procedures under the Fourth Amendment, such as the requirement that the government establish probable cause. Rather, the amendments would merely ensure that at least one court is available to consider whether a particular warrant application comports with the Fourth Amendment.

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. The use of remote searches is not new and warrants for remote searches are currently issued under Rule 41. In addition, most courts already permit the search of multiple computers pursuant to a single warrant so long as necessary legal requirements are met.
This is... skirting the truth, at best. Under the existing Rule 41, there are clear limits on warrants that are outside the jurisdiction of the court (see 41(b)). The new Rule 41 wipes away many of those restrictions by adding an entirely new form of warrants for "remote access to search electronic storage media." This is the kind of thing that Congress is supposed to decide upon, not the courts at the behest of the DOJ. If Congress hasn't granted this authority, it's pretty ridiculous for the courts to just do it on their own, and, furthermore, to insist this is little more than an administrative change.

The DOJ also leaves out that the new rules also effectively wipe out the requirement to give a copy of the warrant to the person whose computers are being hacked. Yes, the new rules require a "receipt" but they switch to a "reasonable efforts" standard, rather than the current standard, which is that they must give it to the person or "leave a copy" where the property was taken. That pretty much guarantees that some of the people who are hacked following this won't even know about it.

And if it were really true that this new rule doesn't change anything, then why is the DOJ pushing so hard for it? Remember that a bunch of courts have been throwing out some of these searches as being illegal, so clearly there's an issue here.

The DOJ insists that the new rules only apply in narrow cases WHERE YOU SHOULD ALL BE AFRAID because EXPLOITED CHILDREN ARE AT RISK IF YOU DON'T ALL SHUT UP.
First, where a suspect has hidden the location of his or her computer using technological means, the changes to Rule 41 would ensure that federal agents know which judge to go to in order to apply for a warrant. For example, if agents are investigating criminals who are sexually exploiting children and uploading videos of that exploitation for others to see—but concealing their locations through anonymizing technology—agents will be able to apply for a search warrant to discover where they are located. A recent investigation that utilized this type of search warrant identified dozens of children who suffered sexual abuse at the hands of the offenders. While some federal courts hearing cases arising from this investigation have upheld the warrant as lawful, others have ordered the suppression of evidence based solely on the lack of clear venue in the current version of the rule.
I'm all for the DOJ going after people sexually exploiting children. It seems like a pretty good use of their time. But we should always be skeptical when law enforcement starts throwing out "sexually exploited children!" and "terrorism!" as reasons to upend existing rules. Especially when they cover something as important as how broadly the FBI and DOJ can hack into people's computers.

The FBI has a rather long history of abusing its surveillance powers, and especially seeking to avoid strict oversight. Approving such a change just because the DOJ is insisting it's "FOR THE CHILDREN, WON'T YOU PLEASE THINK OF THE CHILDREN!" isn't a particularly good reason. If the DOJ really thinks this kind of expansion of its ability to hack computers both at home and overseas (again: this is a diplomatic nightmare waiting to happen) is really so important, then it should have Congress pass a law, rather than insisting that it's nothing more than an administrative change to clarify a rule.

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  • identicon
    Jason, 22 Jun 2016 @ 11:57am

    Have no fear, existing protections remain in place!

    The amendments do not change any of the traditional protections and procedures under the Fourth Amendment...
    ...since we plan to ignore them regardless.

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 12:03pm

    Let them know what you think.

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 12:05pm

    I have really been trying to see things from law enforcement perspective more, I really am. I can see a reasonable need to be able to issue such warrants to hack TOR nodes in some cases and Proxies in some cases when getting a warrant is impractical or due to MLAT restrictions (in terms of proxies), not viable.

    So I try to draw a distinction between representatives from two different gov agencies in regards to controversial policy goals.

    To compare Robert Litt of the NSA vs James Comey of the FBI:

    Robert Litt advocates for many views I find objectionable. I find his push for mass surveillance morally abhorrent. But he at least has enough respect for the public discourse to justify his policy views. I can respect him there and his arguments do give me different perspectives I had not previously considered.

    But Comey? I find him to be a cowardly, dishonorable person trying to sneak his policy goals in. He refuses to so much as acknowledge opposing views, let alone justify his policy goals in a public venue.

    While I have respect for a number of agents and personnel who work at the FBI, Comey is most definitely not one of them.

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

    • icon
      Synergy Waffle (profile), 22 Jun 2016 @ 12:59pm

      Re:

      when getting a warrant is impractical

      I think you're missing a critical point here. A warrant, by definition, permits an otherwise illegal action. Therefore:

      - By its very nature, a warrant lays out very clearly that if you don't have a warrant, don't do the thing; it's illegal.
      - It also follows that if a potential issuer of a warrant doesn't have jurisdiction, they cannot legally issue the warrant. In so doing, they would be overstepping the bounds of their authority as defined by law and themselves performing an illegal action.
      - On top of that, the bar for getting a warrant in most cases has fallen so disastrously low as to be nearly imperceptible. There's no valid excuse to my mind that would justify the absence of a warrant.

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

  • icon
    Uriel-238 (profile), 22 Jun 2016 @ 12:19pm

    You know what the Department of Justice is notorious for doing these days?

    Lying!

    as in pants-on-fire.

    as like rugs and dogs and dogs on rugs.

    as in saying anything that will justify getting more power to do more searches in order to get more of that tasty sweet lucre that people carry around.

    as in why the fuck does anyone still listen to them like ever!?

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

    • identicon
      Anonymous Coward, 22 Jun 2016 @ 4:20pm

      Re: You know what the Department of Justice is notorious for doing these days?

      as in why the fuck does anyone still listen to them like ever!?

      Because they make such wonderful fodder for evening political satire shows like Last Week Tonight and The Daily Show?

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 12:25pm

    War on Due Process

    Citizen,

    Do your patriotic duty and enable us to protect you from the evil drug-dealing-pedophile-terrorists!

    Join the fight in our War on Due Process!

    Remember, when you get a fair trial, the terrorist win.

    God bless America,

    DOJ/FBI/NSA/etc.

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

  • icon
    JoeCool (profile), 22 Jun 2016 @ 12:42pm

    Do as I say, not as I do

    Approving such a change just because the DOJ is insisting it's "FOR THE CHILDREN, WON'T YOU PLEASE THINK OF THE CHILDREN!" isn't a particularly good reason.


    Especially when it's the FBI/DOJ doing the exploiting. Who was it again running that site?

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

  • icon
    TechDescartes (profile), 22 Jun 2016 @ 12:45pm

    Well in that case…

    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.
    If this statement were true, the amendments would not be needed. That they are trying to change the rule proves the statement is false.

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

  • icon
    John Fenderson (profile), 22 Jun 2016 @ 1:02pm

    I just noticed

    A while back, I noticed that "terrorism" had become such a common and overused excuse for pretty much everything that I had developed the habit of discounting any governmental or other authority figure's argument the instant that it's trotted out unless the subject at hand is actually terrorism.

    For me, "terrorism" has achieved the status a red flag term: if it's being used to justify or defend something, I am much more skeptical of that thing. This isn't a conscious thing on my part, really, it's just how it is.

    What I just noticed is that "for the children" has now reached the same terrible status.

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

    • icon
      Uriel-238 (profile), 22 Jun 2016 @ 1:20pm

      In the 20th century, religious endorsement was used to death that way.

      A couple of black humor pieces I wrote compared the things that Satan endorsed in the 20th century (Rock and Roll, the sexual revolution, women's lib) and the things that God endorsed in the 20th century (The MX missile, Nuclear escalation, destruction of the Soviet Union).

      The point was to showcase (and take advantage of, for humor's sake) the religious hyperbole of the time.

      Satan turns out to back some pretty sweet issues. God just wants to nuke everyone.

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

    • icon
      JoeCool (profile), 22 Jun 2016 @ 1:41pm

      Re: I just noticed

      It's the new Godwin's Law. Whoever invokes it instantly loses the argument.

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

      • icon
        That One Guy (profile), 22 Jun 2016 @ 2:02pm

        How things /should/ be vs How things /are/

        It's the new Godwin's Law. Whoever invokes it should instantly loses the argument.

        Sadly there still remain more than enough idiots in office and out that it still works, because who wants to be on the record as being on the side of the criminals/communists/terrorists? No no, law X would never be abused and used in an improper way, so clearly innocent people have no grounds to object, meaning the only people who would ever object are criminals/communists/terrorists. You're not one of those, are you?

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 1:52pm

    the new rules require a "receipt" but they switch to a "reasonable efforts" standard, rather than the current standard, which is that they must give it to the person or "leave a copy" where the property was taken.

    I would point out here that if the FBI can locate, hack into and take information from a computer, then they are also capable of leaving a copy of the warrant behind on that same computer, and even forcing the computer to display said warrant as soon as the user logs in. Thus, by any "reasonable" standard, there should be absolutely no problem with serving the warrant.

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

    • identicon
      Anonymous Coward, 23 Jun 2016 @ 1:19am

      Re:

      If they leave a copy of the warrant on the computer, the defendant has a means of demonstrating that they could have also planted evidence on the computer.

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

      • icon
        Uriel-238 (profile), 23 Jun 2016 @ 12:33pm

        Hacking implies malicious intent.

        ...which is the case regardless of whether they leave a warrant on the computer. Every hack involves a ton of good faith trust that the FBI is not a bad actor.

        The fact that they are hacking in the first place and lying in court to cover it up indicates they are.

        Not that an FBI friendly judge would care.

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

        • icon
          John Fenderson (profile), 23 Jun 2016 @ 6:05pm

          Re: Hacking implies malicious intent.

          "Hack implies malicious intent"

          I realize that this linguistic battle has been lost for a long time, but it makes me sad whenever people equate hacking with malicious or illegal behavior.

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

          • icon
            Uriel-238 (profile), 23 Jun 2016 @ 9:32pm

            Okay: Hacking BY THE STATE of a NON-STATE PROPERTY implies malicious intent.

            Alright, let me clarify:

            When a representative of the state such as a government agent hacks into a civilian device without the consent of its owner...

            That's malicious.

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

            • icon
              John Fenderson (profile), 24 Jun 2016 @ 8:20am

              Re: Okay: Hacking BY THE STATE of a NON-STATE PROPERTY implies malicious intent.

              Absolutely yes!

              Given the specific nature of my geekitude, I frame the thing slightly differently. Security is about protecting against attackers. An "attacker" is "anyone or anything that is attempting to bypass your security mechanisms without your consent".

              Since I take a very technical view, the intent of the attacker is completely irrelevant and I don't even have to consider subjective things like whether or not the attacker is malicious.

              But I'm not only a huge geek, I'm also a pedantic geek.

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 2:02pm

    Both the NSA and the FBI have long ago spent what ever credibility they once had in appealing to the public for what they want. In essence they have lost the trust of the public doing much the same as they are attempting here. Pretty much the whole arm of justice has been contaminated by corruption and a willingness to serve not the public's needs but rather to go against the intent of the Constitution and it's requirements.

    There was a purpose to requiring warrants. One was to make sure there was enough evidence to satisfy a judge it was worth taking a look. Another was to ensure those being searched would have legal process in the area they resided in.

    It's really hard for me to see where you can have legal process much less jurisdiction when the internet is global. This one thing along pretty much nulls the warrant process designed to protect against these very things.

    The idea this still has to go through a court, doesn't mean much today with the present twisting of the law. There was a time when ignorance of the law was no excuse. Not so much any more with secret courts that can produce secret rulings that the citizens aren't allowed to know of or what they are about. When you don't know of rulings made in secret there is no way in the world, no matter what your good intentions are of being able to stay within the law when you don't know what the law is. Much the same, these requests for warrant may never come to see the light of day for the citizens; or at least that is the track we are trending towards, little by little.

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

  • icon
    Ben (profile), 22 Jun 2016 @ 2:05pm

    Open up all the courts for venue shopping

    I can just see the FBI shopping for a tame judge located somewhere/anywhere in the US who would be willing to sign any warrant put in front of him/her. Bad judges of that ilk were limited in who they could effect, but not anymore; now they will have a reach covering the entire US (and possibly further!)

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

  • icon
    That One Guy (profile), 22 Jun 2016 @ 2:10pm

    Makes perfect sense. So long as you don't spend any time at all thinking about it

    Any time that a politicians or government agent claims that they need a new law, followed by defending it by claiming the law won't actually change anything significant you can safely assume that they are either:

    1) Lying
    2) Wasting everyone's time
    3) Both

    If the law doesn't change anything then there's absolutely no reason to propose and support it unless they just like wasting time passing useless laws. The entire point of a new law, or a change to an existing law is to change the status of one or more actions, making illegal what was legal, legal what was illegal.

    If they're going to claim that the law doesn't change anything then great, throw it out and save everyone some time, problem solved. If they want to defend it on it's own merits(assuming it has any...) then they're welcome to do so, but blatant lies and attempts at misdirection are things they are not welcome to do, and indicate that they don't believe they can defend the law/change honestly.

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

  • icon
    Jnite (profile), 22 Jun 2016 @ 2:19pm

    One day the wrong Rule will be changed

    Slowly but surely the government is changing the Rules that affect the internet to fit their desires.

    One day the government is going to make changes to Rule 34. When that day happens and it is reported on, I look forward to watching the internet explode from the ensuing misunderstandings.

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

  • identicon
    Anonymous Coward, 22 Jun 2016 @ 2:27pm

    diplomatic issues, they will lead to war with some of the touchier countries.

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

  • identicon
    From on high, 23 Jun 2016 @ 9:24am

    Truth be told

    Its not about anything they're claiming its about. They throw the children up there because who can dispute that.

    Its about the governments having the reigns on all three "OMNIs"

    Omnipresence
    Omnipotence
    Omniscience

    Who can dispute that?

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

  • identicon
    Anonymous Coward, 23 Jun 2016 @ 11:38am

    If you want the mainstream media to do its job and report stories of this nature, don't vote democrat.

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


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