Attention Just Starting on Controversial DOJ Proposal on Hacking Warrant Rules
Congressional, industry and advocate scrutiny has just begun on a controversial DOJ proposal to alter the Federal Rule of Criminal Procedure 41 to expand federal judges’ ability to issue warrants for remote searches of computers outside their jurisdictions, stakeholders agreed in interviews Friday. At least one legislative challenge in the Senate is already likely. Opponents of the proposed Rule 41 revision said further attention will come, but may take time. The Supreme Court approved DOJ’s proposal Thursday as part of a larger set of changes to Federal Rules of Criminal Procedure that the court received from the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure. The Supreme Court forwarded the suggested revisions to Congress, which has until Dec. 1 to give its opinion on the proposals. The suggested revisions will automatically take effect if Congress doesn’t act to block them by then (see 1604280074).
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Sen. Ron Wyden, D-Ore., repeated his earlier promise (see 1603310062) to work to block DOJ’s Rule 41 scheme. “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,” he said in a Thursday statement. He said that DOJ’s proposed “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.” Wyden criticized the DOJ for using the Judicial Conference process to quietly vet its Rule 41 revision. “These are complex issues involving privacy, digital security and our Fourth Amendment rights, which require thoughtful debate and public vetting,” Wyden said. “Substantive policy changes like these are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process.”
Wyden is the only federal lawmaker to publicly oppose the idea. Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, also voiced skepticism as part of inquiries into the FBI’s surveillance program, an industry lobbyist told us. But Grassley hasn’t publicly taken a position on the proposition, the lobbyist said. The House Judiciary Committee is also examining the DOJ proposal, an aide said. Some other members of Congress are also concerned about the DOJ suggestion but are waiting to take a position on it until at least after Congress returns from recess the second week of May, the lobbyist said.
It’s “hard to say right now who else on Capitol Hill is going to come out against” the DOJ effort because both Rule 41 and the Judicial Conference are “so obscure that most members of Congress simply don’t know anything about it yet,” said New America's Open Technology Institute Policy Counsel Robyn Greene. OTI and several other digital rights groups and privacy advocates have been actively opposing the DOJ’s Rule 41 proposal and have already asked Congress to block it. “A lot of members’ offices are just tuning in to the specifics of Rule 41,” said Neema Singh Guliani, an American Civil Liberties Union Washington legislative counsel. A core contingent of members of Congress beyond Wyden who have repeatedly raised concerns about government surveillance is also likely to “weigh in” against the DOJ on this, as will members “who are very cognizant of legislation that affects the tech sector,” Guliani said.
The ACLU and OTI are highlighting the Judicial Conference process for moving the DOJ’s Rule 41 proposal to Congress in a bid to reach other legislators who haven’t previously joined privacy advocates in strongly opposing bills like the 2015 Cybersecurity Act, which passed as part of the FY 2016 omnibus spending bill (see 1512160068 and 1512180052). “This is an issue of executive branch overreach,” because of DOJ’s decision to use the Judicial Conference process to back-door the scheme into Congress, Greene told us. “There are members of Congress who regardless of their position on privacy issues may view this as a misuse” of the Judicial Conference process, Guliani said.
Digital rights groups and privacy advocates have a head start mobilizing opposition to the DOJ proposition because of their ongoing work to pass the Email Privacy Act (HR-699), said Information Technology and Innovation Foundation Vice President Daniel Castro. ITIF hasn't taken a position on the DOJ proposal. It’s not clear how the division between supporters and opponents of the DOJ revision will shake out because it raises questions that are also present in the Email Privacy Act debate and the encryption debate, Castro said. Divisions on encryption are far more pronounced than they are on the Email Privacy Act, he said. The state of play in Congress will depend on the degree to which either the narrative that this is an example of government overreach or that it is an example of “appropriate modernization” sticks, Castro said.