Bipartisan Group Tries to Stop Expansion of Justice Dept.'s Hacking Powers

WASHINGTON — A bipartisan group of lawmakers have joined together in a bid to stop a Justice Department rule from taking effect that simplify the government’s legal path to hack a computer.

A proposed change to Rule 41 of the Federal Rule of Criminal Procedure would allow magistrate judges, who currently can authorize search warrants to remotely access a computer within their own district, to sign off on a search anywhere in the country.

Last month, the Supreme Court kicked the rule back to Congress: make modifications, reject or ignore it with a Dec. 1 deadline looming for the new rule to go into effect as is.

The Stop Mass Hacking Act was introduced today in the House by Reps. Ted Poe (R-Texas) and John Conyers (D-Mich.). It’s a companion bill to legislation from the Senate’s foremost advocates of privacy, Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.).

Reps. Blake Farenthold (R-Texas) and Zoe Lofgren (D-Calif.) are also original co-sponsors in the House.

The bill’s wording is short: “The proposed amendments to rule 41 of the Federal 8 Rules of Criminal Procedure, which are set forth in the 9 order entered by the Supreme Court of the United States 10 on April 28, 2016, shall not take effect.”

The Justice Department has been trying to push through the changes for a few years, arguing that the law needs to keep up with technology that stymies investigators such as the anonymous Tor browser.

Conyers, the ranking member on the House Judiciary Committee, said he’s “not yet convinced that the proposed changes to Rule 41 are wise or necessary.”

“This rule change is designed to streamline investigative techniques that allow law enforcement to gain unauthorized access and control to remote computer systems,” he said. “Until Congress has had an opportunity to examine this proposal in detail — and until we have adequately addressed the privacy concerns raised by my colleagues — this rule change should not take effect.”

Farenthold warned that “we’re in the midst right now of one of the biggest battles in the privacy world that we have faced.”

“Because of the horrendous terrorist attacks we’ve witnessed, there’s a willingness to give up some of our freedoms and privacy in order to feel safe. That’s completely understandable, but if we keep down this path, we’re going to wake up in a few years in George Orwell’s 1984,” he said.

Wyden noted that the House bill is “proof that a growing, bipartisan coalition agrees that this expansion of the government’s hacking and surveillance authority simply goes too far.”

In a 2014 memo on the rule change, the American Civil Liberties Union cautioned that it would open up searches that “raise serious Fourth Amendment questions.”

“It would also expand the government’s power to engage in computer hacking in the course of criminal investigations, including through the use of malware and other techniques that pose a risk to internet security and that raise Fourth Amendment and policy concerns.”