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“By sitting here and doing nothing, the Senate has given consent to this expansion of government hacking and surveillance.”
Enlarge / Sen. Ron Wyden
Those were the words Wednesday of Sen. Ron Wyden (D-Ore.) as he failed to convince fellow senators to even hold a floor vote that could block changes to what is known as Rule 41 from taking effect Thursday.
Wyden was referencing an amended Federal Rule of Criminal Procedure, which originated from an unelected advisory committee and was signed by the Supreme Court in April. By rule, it becomes effective December 1. The measure clarifies the law allowing judges to sign warrants that let authorities hack into computers outside a judge’s jurisdiction. The rule also gives federal judges the authority to issue a warrant to search multiple computers—even without knowing who is the targeted computer owner. Previously, some judges had practiced this, while others did not.
Wyden, a handful of fellow lawmakers, and civil rights groups like the Electronic Frontier Foundation oppose Rule 41. They say that under the measure, a warrant would not have to say with any particularity whose computer the authorities are searching. Wyden said Congress should vote on whether to allow this instead of the measure taking effect without any congressional approval.
The Department of Justice, meanwhile, said Wyden’s fears are overblown.
It is important to note that the amendments do not change any of the traditional protections and procedures under the Fourth Amendment, such as the requirement that the government establish probable cause. Rather, the amendments would merely ensure that venue exists so that at least one court is available to consider whether a particular warrant application comports with the Fourth Amendment.
In a recent Medium post, Wyden said: “For law enforcement to conduct a remote electronic search, they generally need to plant malware in—i.e. hack—a device. These rule changes will allow the government to search millions of computers with the warrant of a single judge. To me, that’s clearly a policy change that’s outside the scope of an ‘administrative change,’ and it is something that Congress should consider.”
The Senate, however, failed Wednesday to muster the willpower to even vote on various proposals to block or delay Rule 41. One measure would have stopped Rule 41 outright. Another would have delayed the changeover for six months. A third bill would have stalled the measure for three months.