"'... It should be up to Congress to decide the rules for government hacking after an informed public debate.'"

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SCOTUS Approves Broader Hacking Powers For FBI. What Could Go Wrong?
By Aaron Rupar, Aril 29, 2016

While conversations surrounding decryption dominate the tech news cycle, the FBI is on the cusp of drastically increasing its hacking powers.

On Thursday, the Supreme Court quietly signed off on changes to Federal Rule of Criminal Procedure 41 that one expert calls “possibly the broadest expansion of extraterritorial surveillance power since the FBI’s expansion.”

The Rule 41 changes, which will go into effect December 1 unless Congress intervenes, allow judges to grant the FBI search warrants to remotely hack into computers even when their physical location cannot be determined. That means the FBI could potentially receive authorization to hack devices abroad, whereas judges currently cannot issue search warrants unless they know the computer in question is in their jurisdiction.

In a blog post about the rule changes, Joseph Hall, the chief technologist at the Center for Democracy and Technology, explains that countless internet users who aren’t necessarily up to anything nefarious could now become become subject to one of the FBI’s so-called “Network Investigative Techniques” (NIT).

"The simple fact is that there are many, many ways to intentionally or unintentionally 'conceal through technological means' a device’s location, and most of those techniques are regularly used for completely legitimate online behavior that has nothing to do with crime," Hall wrote.

NITs give investigators full remote access and control of targeted computers without the owner’s permission. This means that once the FBI gets its warrant, it not only has full access to a suspect’s data, but it also has ability to install software, upload files, and even spy on suspects using their computers’ cameras and microphone.

Another aspect of the changes would allow judges to issue search warrants in situations where multiple computers located in different locales have been "damaged" by linked forms of malware.

"The statute’s definition of 'damage' is very broad, encompassing any type of intentional damage to a computer," Hall added. "That opens this authority to be much broader than botnets, and it would in fact reach hundreds of millions of computers around the world that have been infected with garden-variety malware and viruses."

In a statement, a Department of Justice spokesperson said "the amendment makes explicit that it does not change the traditional rules governing probable cause and notice," but critics counter that ambiguities surrounding terms like "conceal through technological means" and "damage" opens the door to greater surveillance of internet users both domestically and abroad.

Sen. Ron Wyden (D-OR) has already announced he'll be introducing legislation to roll back the changes. From his statement:

“These amendments will have significant consequences for Americans’ privacy and the scope of the government’s powers to conduct remote surveillance and searches of electronic devices. I plan to introduce legislation to reverse these amendments shortly, and to request details on the opaque process for the authorization and use of hacking techniques by the government...

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. These are complex issues involving privacy, digital security and our Fourth Amendment rights, which require thoughtful debate and public vetting. Substantive policy changes like these are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process."

Wyden's push to have Congress reverse the Rule 41 change was applauded by Amie Stepanovich, U.S. Policy Manager at Access Now, who writes, “This is a major shift. It should be up to Congress to decide the rules for government hacking after an informed public debate."

But Hall told ThinkProgress his sense is a bill along the lines of what Wyden is proposing has little chance of becoming law between now and December 1.

"It's an election year and this is pretty obscure," he said. "I don't think there's much of an appetite to do anything in Congress."

FBI surveillance has come under renewed scrutiny over the last year in the wake of reports revealing the bureau used advanced technology on airplanes to monitor protesters. Other FBI investigations reportedly utilized planes equipped with technology capable of tracking thousands of cellphones, raising privacy concerns that are only exacerbated by news the bureau's hacking capabilities are set to significantly increase.
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