As Rule 41 Quietly Passes, Trump to Inherit Expanded Hacking Powers

Changes to a rule that expand government hacking powers quietly went into effect at midnight on Thursday, after senators failed to halt their implementation.

The amendments (pdf) to Rule 41 of the Federal Rules of Criminal Procedure now allow intelligence agents to get warrants to hack into computers that are outside of the judicial district where the warrant was issued, if the target is using anonymity or encryption software like virtual private networks (VPNs), Tor browsing, or other protection tools.

Under previous rules, FBI agents were required to get warrants from federal magistrate judges in the districts in which the computers were located--which meant targets who used privacy software were more secure against government spying. There are more than 500 federal magistrate judges around the U.S.

"So," the digital rights group Fight for the Future said this week, "if the FBI wants to hack you but they don't have evidence that passes muster with your local federal judge, they will be able to take their case to a more lenient (or more naive) judge located anywhere in the country."

The new provisions are particularly troubling in light of the incoming presidential administration. As Common Dreams has previously noted, President Barack Obama spent much of his time in office expanding and building upon controversial policies that saw civil liberties eroded on many fronts--and now all that unchallenged power will be in President-elect Donald Trump's hands.

Republican Senate leaders on Wednesday denied requests by three lawmakers, including Sen. Ron Wyden (D-Ore.), to pass or vote on measures that would block or delay the rule to give time for congressional analysis.

"By sitting here and doing nothing, the Senate has given consent to this expansion of government hacking and surveillance," Wyden said Wednesday. "Law-abiding Americans are going to ask 'what were you guys thinking?' when the FBI starts hacking victims of a botnet hack. Or when a mass hack goes awry and breaks their device, or an entire hospital system and puts lives at risk."

National Security Agency (NSA) whistleblower Edward Snowden tweeted, "Without a debate or any new law, the rights of every American--and basic privacy of people around the world--have been narrowed."

In one example, under Rule 41's new provisions, FBI agents could remotely access any device that was used in the major botnet attack earlier this year that caused outages throughout the web, even if the owner was not involved in the scheme but simply a victim.

As the digital rights group Electronic Frontier Foundation (EFF) warned in June, the process for updating the rules was intended to deal with procedural issues, but earlier this year a committee known as the Judicial Conference quietly approved the changes that expanded federal hacking capabilities.

"The government is attempting to use a process designed for procedural changes to expand its investigatory powers," EFF activism director Rainey Reitman said at the time. "Make no mistake: these changes to Rule 41 will result in a dramatic increase in government hacking."