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FBI Seeks Brazen Hacking and Surveillance Powers



The U.S. Federal Bureau of Investigation (FBI) is requesting expanded powers to carry out surveillance and secretly hack into computers. The requested rule change has been characterized by civil liberties advocates as an extremely invasive power grab and counter to the Constitution of the United States.

The request has been made to the Advisory Committee on Rules of Criminal Procedure, part of the U.S. Dept. of Justice. The proposed changes to the FBI’s rules of engagement would allow a Federal judge to issue warrants allowing the agency to break into any computer, inside or outside the U.S. The FBI says this is required to assist its investigators in spying on “anonymized” computers. Which is to say, computers which have had their location purposefully hidden.

The requested change to Rule 41 of the Federal Rules of Criminal Procedure would expand the FBI’s powers, allowing it to wander across boundaries and would be applicable to any criminal investigation, not just the terrorist cases which are currently exempt.

Should the relatively obscure committee grant the change, the FBI could then proceed with “network investigative techniques” on computers around the globe. The tools available to the FBI under its desired scenario would allow it to secretly install malware (malicious software) on computers which will enable agents to download all of a computer’s digital contents and also turn microphones or cameras on.

Rule 41 outlines the terms and restrictions under which the FBI can conduct searches which are approved by court-generated warrants. Currently, warrants must not only be tightly focused on specific locations but also receive the approval of judges located in the same U.S. district.

Civil liberties groups caution that the “power grab” would liberalize the historically strict limits on seizures and searches, as directed in the U.S. Constitution’s fourth amendment. They also warn that the rule change would stand in violation of the privacy rights detailed in the first amendment. Such enormous changes, they say, are being attempted with nominal public debate and without congressional involvement.

Ahmed Ghappour will address next week’s meeting. He is a law expert with Hastings College of Law at the University of California and said the changes being put forward are “without any consideration of the policy implications” and that it is “an especially brazen and potentially dangerous move.”

Chris Soghoian with the American Civil Liberties Union characterized the technique as “extremely invasive” and said that a go-ahead of the rule change would allow the FBI to “hack into any computer” around the world. Jennifer Granick, the Director of Civil Liberties at Stanford Law School’s Center for Internet and Society, said that the desired investigative “remote access” techniques “absolutely should not be done through a rule change” and that it must be fully debated in public and “Congress must be involved.”

Ghappour has pointed to the potential international fallout that approval would instigate. Currently the fourth amendment does not keep the U.S. government from spying in other countries because the U.S. Constitution applies only to the United States and its territories. However, he said this will be the first time that U.S. “courts will be asked to issue warrants allowing searches outside” the U.S.

The Advisory Committee on Rules of Criminal Procedure consists of eighteen judges, law professors and lawyers. It is chaired by Judge Jeffrey S. Sutton of the Tenth District Court of Appeals in Columbus, Ohio.

By Gregory Baskin

Personal Liberty
Advisory Committee on Rules of Criminal Procedure