In April the Supreme Court approved the FBI’s request for expanded powers under Rule 41. This rule change could have been rolled back if Congress decided to do that, but they did not and the changes to the rule went into effect on December 1.
So what do the changes to Rule 41 of the Federal Code of Criminal Procedure do? It allows a law enforcement officer or federal prosecutor to find some judge, anywhere in the United States, to allow them to hack into an unlimited number of computers, anywhere in the world. The FBI prefers the term Network Investigative Technique to the more common term Hacking.
U.S. Assistant Attorney General Leslie Caldwell says that the benefits outweigh the risk of abuse. Tell that to people were spied on by J. Edgar Hoover, Director of the FBI from 1935 to 1972.
It is clear that law enforcement is challenged with laws designed for the crimes of the 1800s executed by criminals in the 21st century.
On the other side, hacking in to computers is a long slippery slope. I am not convinced that many judges will understand the implications of hacking into computers.
It is highly likely that data extraneous to investigations will be captured and if history is any indicator, it is unlikely that the government will be able to successfully protect that data. If the NSA is any model – and they likely have more discipline than most law enforcement agencies – it seems inevitable that data will be inappropriately shared.
It is also likely that FBI programmers are not perfect and that some people’s computers will be damaged and data lost. With the FBI not responsible for that. Since users are horrible at backing up their data it is highly likely that data will be lost permanently.
In addition, this new rule does not place any requirements on the government to protect this non-relevant data or to delete it. These days it is not uncommon for people to have a terabyte of data or more on their home computer. With this new rule the FBI or other law enforcement agency will be able to suck that data out of the computer, store it for some undefined future use, roam through it to see if there is any evidence of a potential crime and then start an investigation.
It is a scary thought.