Rule 41 Gives FBI Unprecedented Hacking and Surveillance Powers

Weeks before Donald Trump’s inauguration, a federal rule governing search and seizure has been amended to vastly expand the FBI’s hacking and surveillance abilities, in what some are calling the greatest blow to privacy since the passage of the Patriot Act.

Democratic Senator Ron Wyden, who led efforts to block and delay the bill, called it “one of the biggest mistakes in surveillance policy in years.”

Rule 41 of the Federal Rules of Criminal Procedure now allows any judge to issue a warrant to remotely search and seize data from a computer when a suspect uses software such as Tor or a VPN to conceal its location. Previously, magistrate judges were only allowed to authorize searches within their jurisdiction. Now, warrants can give the FBI the authority search computers in practically any jurisdiction and potentially overseas as well.

According to the Electronic Frontier Foundation, this rule change means anyone using Tor or a VPN “could find themselves suddenly in the jurisdiction of a prosecutor-friendly or technically-naïve judge, anywhere in the country”

The new and expanded Rule 41 also allows judges to authorize searches and infiltration of computers that are part of a network of hacked computers known as a botnet, even if their owners are unwitting victims of malware.

In sum, the rule change lets a single warrant authorize the remote searches and hacking of multiple computers, phones, and connected devices in any region.

The Department of Justice has argued that the change is a long-overdue modernization of criminal procedure in the digital age, given that hackers can commit crimes from thousands of miles away.

Civil rights organizations and even members of Congress, on the other hand, have voiced concerns over the sweeping nature of the change and the ambiguity surrounding its legal implications. In a November letter to lawmakers calling to delay the rule change pending further discussion and deliberation, a diverse coalition of groups that included Google, the ACLU, and Human Rights Watch, warned that the “consequences of this rule change are far from clear, and could be deleterious to security as well as to Fourth Amendment privacy rights”.

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