Wyden Seeks Grassroots Support for Push to Block Rule 41 Change

“We’re up against the fact that inaction is easy, inaction is what Congress does best,” Wyden said during a New America Open Technology Institute (OTI) event. The rulemaking process that produced the change and the narrowing legislative window have jointly stacked the deck against stopping it, as a “proactive vote” on Rule 41 likely would have killed the change, Wyden said. He criticized Justice for ramping up the push for the change as a “knee-jerk reaction” to the December terrorist attack in San Bernardino, California. Advocates should “forget that there aren’t many legislative days on the calendar to spare and let’s get going once again building a grassroots” movement in favor of HR-5321/S-2952 and against the modification, he said.

Wyden told reporters he plans to “look at all of the procedural options” for pushing for a Senate floor vote on S-2952, including the possibility of attaching the bill’s language as an amendment to must-pass legislation. “The most important thing right now is to get hearings in both the House and the Senate to kind of jump-start the debate,” he said. Public outreach and hearings to educate legislators on the change are “what’s key right now.” Wyden said he's continuing to negotiate with fellow senators to scuttle a controversial amendment to the FY 2016 Commerce, Justice and Science budget that would widen FBI access to Americans' sensitive data online via a national security letter. The amendment, sought by Senate Majority Whip John Cornyn, R-Texas, failed on a 58-38 procedural vote last month. It could be brought up again when the FY 2016 Commerce budget returns to the floor (see 1606220075). “Nobody expected we’d get 38 votes” against the NSL amendment “but it’s a heavy lift,” Wyden said.

It’s still “too early to say for sure” whether Congress has an appetite to stop the Rule 41 change before Dec. 1, said OTI Senior Policy Counsel Ross Schulman in an interview. It “feels like a long time” since the Supreme Court approved DOJ’s proposal in late April (see 1604280074) “but at the rate Congress moves, it’s not a long time at all," he said. "And there have been a lot of other things going on simultaneously in this space, so we haven’t had the bandwidth yet to look at it.” Congress’ likelihood of seriously examining the modification could be heightened by passing HR-5321/S-2952, Schulman said. “Saying no to the rule change in the near term doesn’t say, ‘We’re never going to do this,’ it’s just a move to put on the brakes” and examine the rule further once the 115th Congress convenes in January, he said.

The adjustment was needed because Justice has been hamstrung by the rule’s lack of options for addressing obtaining a warrant on a computer that's hiding its location, said George Washington University law professor Orin Kerr, a member of the DOJ Federal Rules of Criminal Procedure Committee. The advisory committee originally drafted the rule change. “In the traditional physical world, the government can’t search something if they don’t know where it is,” Kerr said: “The answer for which district you go to” for warrants on computers without location data is to go to “the district where activities related to the crime may have occurred.”

Advancing the change is like “putting the cart before the horse” since the government hasn’t effectively debated whether the government should have that level of power, said Access Now U.S. Policy Manager Amie Stepanovich. “That conversation should have happened first” but HR-5321/S-2952 will allow all parties to “take a step back” and examine the Rule 41 change’s potential consequences for international trade and growth of the digital economy, she said. Top tech firms are also concerned about letting the change take effect prematurely before a full examination of its potential impacts on international law can occur, said Monument Policy Group lobbyist Stephanie Martz. “This is a perfect thing for Congress to” address, she said.