The FBI soon could get the power to hack any computer, anywhere thanks to a new under-the-radar US Supreme Court decision.
A slight change to what is known as Rule 41 makes it easier than ever for Uncle Sam to do an end-run around the Fourth Amendment.
“Under the proposed rules, the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once; and the vast majority of the affected computers would belong to the victims, not the perpetrators, of a cybercrime,” US Senator Ron Wyden (D-Oregon) said of the action in a press release. “This is really a big issue when you’re talking about expanding the government’s hacking and surveillance authority.”
The Supreme Court approved the tweak to Rule 41 — part of the Federal Rules of Criminal Procedure – late last month. The changes would allow a federal judge to issue a warrant authorizing the FBI agency to hack into a computer or smartphone anywhere in the US.
Under the current rules, federal judges and magistrates generally can only issue warrants within their jurisdiction. Under the new rules, a federal judge in New York could issue a warrant for an agent to hack into a computer in California.
The ruling by the Supreme Court came not in a typical court case but as part of the judge’s annual overview of the Federal Rules of Criminal Procedure, The Atlantic reported.
“These are complex issues involving privacy, digital security and our Fourth Amendment rights, which require thoughtful debate and public vetting,” Wyden complained.
The senator accused the court of making law by proposing the change. The new rule will go into effect December 1 unless Congress overturns it.
“Substantive policy changes like these are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process,” Wyden said.
Google, the American Civil Liberties Union and the Electronic Frontier Foundation had written a letter to the Judicial Conference Advisory Committee on Criminal Rules, opposing the proposed change, Newsweek reported. Google argued the change would be a “substantive expansion” of the government’s search capabilities and would “authorize remote searches of millions of computers.” Significantly, the new rule allows the FBI to search any computer that is damaged or infected with malware, which one estimate placed at about 30 percent of all computers nationwide, Google claimed.
“[This] raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide,” Google wrote.
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