rule 41

Illustration via Max Fleishman (Licensed)

These lawmakers say there's more to this obscure rule change than meets the eye.

A bipartisan group of senators on Thursday introduced a bill to block an obscure rule change that they argue represents a dangerous expansion of government hacking powers.

The change to Rule 41 of the Federal Rules of Criminal Procedure, approved by the Supreme Court late last month, would let judges issue warrants for electronic searches—including the use of intrusive hacking techniques—when "the district where the [target device] is located has been concealed through technological means." Normally, judges can only issue search warrants within their districts.

The Stopping Mass Hacking Act, introduced by Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) and co-sponsored by Sens. Tammy Baldwin (D-Wisc.), Steve Daines (R-Mont.), and Jon Tester (D-Mont.), represents a last-ditch effort to stop the change.

"This is a dramatic expansion of the government’s hacking and surveillance authority," Wyden said in a statement. "Such a substantive change with an enormous impact on Americans’ constitutional rights should be debated by Congress, not maneuvered through an obscure bureaucratic process."

Wyden and other critics of the Rule 41 change argue that letting judges issue search warrants regardless of the target computer's jurisdiction raises Fourth Amendment concerns. They also warn that government agents could end up planting search malware on innocent Americans' machines if those machines are part of botnets.

"The public doesn’t know nearly enough about how law enforcement executes these hacks, how (or whether) a victim would be notified of the search, and what risks these types of searches will pose," the bill's sponsors note in a summary of their legislation. "By compromising the computer’s system, the search might leave it open to other attackers."

Lawmakers have until Dec. 1 to block the change or it will automatically take effect.

Justice Department prosecutors, concerned that suspects are stymying searches by obfuscating their locations, have been quietly pushing for the rule change for years.

A Justice Department spokeswoman did not respond to a request for comment on the new bill.

Several tech trade groups were quick to praise Wyden and the other senators for their effort to stop the revised rules.

"The implications of this proposed change are far reaching, present an opportunity for Congressional oversight, and should only be addressed as part of a broader national discussion about privacy and security," Michael Beckerman, president and CEO of the Internet Association, said in a statement.

"These remote searches could involve foreign computers and may require so-called 'network investigative techniques,' which essentially amount to government hacking," Ed Black, president and CEO of the Computer and Communications Industry Association, said in a statement. "While the government argues the updates are merely procedural, the use and consequences of these techniques have never received appropriate public and congressional review."

Wyden linked the title of his bill to the Internet slang expression "Shaking My Head" in a Medium post that begins with a picture of the Dos Equis man grimacing.

"While it may be appropriate to address the issue of allowing a remote electronic search for a device at an unknown location," Wyden wrote in the post, "Congress needs to consider what protections must be in place to protect Americans’ digital security and privacy."

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