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."