The Good Fight
3/19/15 at 10:41 AM 2 Comments

Judicial Committee Approves Significantly Expanded Surveillance & Hacking Of Computers by the Feds

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Photo Credit: informaticapertutti.net

The Judicial Conference Advisory Committee on Criminal Rules has given the FBI the initial nod they will need in order to be able to bypass warrants in more cases and hack into any computer, anywhere in the world. The judicial committee voted 11-1 to revise the old federal rule which would broaden the FBI's hacking authority.

Referred to as Rule 41, the current provision allows judges to approve search warrants only for material within the geographic bounds of their judicial district. But the rule change would allow judges to grant warrants for remote searches of computers located outside their districts and when the location is not known.

ACLU attorney Nathan Freed Wessler cautioned that "although presented as a minor procedural update, the proposal threatens to expand the government's ability to use malware and so-called 'zero-day exploits' without imposing necessary protections." Wessler continued, saying "The current proposal fails to strike the right balance between safeguarding privacy and Internet security and allowing the government to investigate crimes."

The default phone encryption offered by Apple, and by Google some time in the future, remains free of law enforcement/intelligence prying eyes for the time being. But, this rule modification would change that, as the FBI and DOJ would be able to legally hack into just about any computer in the world.

Google has sounded the alarm, warning that the amended language represents a "monumental" constitutional concern.

No longer constrained by physical jurisdictions, the FBI would be able to perform these remote searches all over the globe--with very little oversight. The feds would also be authorized to embed malicious software in any computer, located anywhere, for the purpose of tracking suspected criminals.

In addition to that, according to Foundation For Economic Education:

...the requested change would allow law enforcement to obtain a warrant to search electronic data without providing any specific details as long as the target computer location has been hidden through a technical tool like Tor or a virtual private network.”

There's still time, however, before its implementation because the judicial committee’s approval was merely the first approval, among several needed within the federal judicial branch before the the rule change can formally take place. The process in its entirety is expected to take over a year to complete.

Next, the proposal will move on to the Standing Committee on Rules of Practice and Procedure and then to the Judicial Conference, which will occur most likely some time in September. Subsequently, the Supreme Court would have until May 1, 2016 to review and accept the amendment, followed by Congress which would have seven months to defer, reject or modify the amendment. If congress fails to take any action at all, the rule would be adopted on Dec. 1, 2016.

Regarding this process, Tech Dirt had this to say:

Any light shed on ‘arcane’ federal rules and laws should throw a bit on other outdated pieces of legislation, like the CFAA or the Stored Communications Act, which are more in need of an update than Rule 41. Of course, the DOJ likes those the way they are, what with their broad language and deference to law enforcement. Rather than bring American citizens ‘up to date’ with fixes to those bad laws, we'll likely instead receive expanded government power with no corresponding bump for the governed.”

Not surprisingly, there is a great deal of opposition to what is seen as massive overreach of the government, with the newly passed and proposed regulations. Senator Ted Cruz has said the FCC’s action “represents an abuse of its authority.” Additionally, trade associations representing large U.S. Internet service providers are reportedly suing the Federal Communications Commission (FCC) over the new Open Internet (Net Neutrality) web traffic regulations.

According to Reuters:

The industry lawsuits are likely to challenge both the merits of broadband reclassification as well as the administrative process used to adopt it, according to two telecom lobbyists familiar with the discussions.

The first angle would likely involve an argument that the FCC overstepped its statutory authority and dramatically changed the way it regulates Internet service providers without adequate legal basis, the sources said.

The companies have argued that the FCC has unduly decided to treat Internet providers as ‘common carriers’ bound by stricter oversight, after deciding against it years ago. The wireless carriers in particular say that the law has long exempted them from common carrier treatment.

The second argument would be that the FCC did not properly inform stakeholders and the public that it was seriously thinking about switching the classification and ignored some of the arguments the companies had presented during the rulemaking, the sources said.”

The new net neutrality regulations are expected to lead to even more government control because “the FCC has arrogated unto itself such open-ended power to decide which Internet practices it will allow or disallow.” The agency has woven together a vast web of uncertainty that essentially gives it free rein to determine what is permissible or not.

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