FBI’s New Global Hacking Rule: Amended Federal Rule 41 Danger to Your Privacy

Last week, a letter was sent to the U.S. Attorney General signed by 23 Senators and Congressmen, both Republican and Democrat, asking for Loretta Lynch to explain how the new Federal Rule on federal search warrants for computers is going to work.

Criminal defense lawyers have been worried about this new expansion of federal power for a while now.  It’s a constant battle, trying to protect constitutional boundaries for individual privacy and against unconstitutional search and seizure already these days.

Forfeiture cases, money laundering claims, grabbing stuff off smartphones — the risk is high enough now for your privacy to be invaded by the government.  But there’s a game changer coming.  You need to know about this.

Have You Heard of the New Federal Rule Allowing Global Hacking by the FBI?

The new rule goes into effect next month.  Beginning December 1, 2016, federal judges will be allowed to issue search warrants for computers that are located anywhere.  Not just in their circuit or jurisdiction.  Nope.  Anywhere in the country.  Arguably, anywhere in the world.  Foreign soil, no problem.

Read the changes made to Rule 41 of the Federal Rules of Criminal Procedure here.  SCOTUS gave its stamp of approval on this amendment back in April 2016. If Congress doesn’t act fast, it’s going into effect in less than a month.

DOJ Position: No Worries.

Of course, the Justice Department likes these changes.  They worked to make them happen, arguing the changes are needed so the FBI can do its job.

Read the DOJ’s position on this new Rule here.  Their perspective makes it sound so warm and fuzzy:

“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 at least one court is available to consider whether a particular warrant application comports with the Fourth Amendment.”

Congressional Concerns

There’s more here.  You know there’s something afoot when people like Mike Lee, Elizabeth Warren, Patrick Leahy, and Al Franken (among others) all join together to sign this thing.

Read the letter sent by members of both the U.S. Senate and U.S. House of Representatives here:

   Rule 41 Letter to DOJ From Congress October 2016 by Michael Lowe, Attorney at Law on Scribd

FBI Power Grab and Danger to Privacy Concerns

What is the big deal here?  This is giving lots and lots of power to the Department of Justice.  LOTS.

The Electronic Frontier Foundation is warning everyone it can about this.  EFF sees this rule as a tool for the federal government to remotely gain access (i.e., hack) into anyone’s computer no matter where that computer is located.  It impacts ALL computers, EVERYWHERE.

Read the EFF warnings in their October 28, 2016 article by Kate Tummarello entitled, “Congress Needs More Information Before the Government’s New Hacking Powers Kick in.”

Another letter was sent back in the summer.

It was called the “Rule 41 Coalition Letter,” and it was signed by EFF, as well as recognized experts including Google, Paypal, Tor Project, Evernote, and the National Association of Criminal Defense Lawyers, among others.  Obviously, all these big names and their warnings weren’t enough to get Rule 41 blocked from becoming effective in less than a month.

Judge to Issue Search Warrant under Rule 41

Now, beginning December 1, the federal judge (or magistrate) can issue a search warrant when someone is allegedly using something to conceal the location of their computer.  Warrants can also be issued for a federal search when there’s an ongoing federal investigation into infected computers or hacking.  (Note: computer here means lots of things, from desktops and laptops to smartphones, etc.)

What’s Congress concerned about?

1. Forum Shopping

Playing favorites among the judges.  This is known as forum shopping.   They are worried that the federal agencies are going to avoid judges more concerned with defendant’s rights and constitutional protections of privacy and probable cause.  Why?

The Rule will allow the prosecutors to go before judges and magistrates they know are pro-prosecution.  There’s no barrier to skipping past judges that might ask some hard questions or demand more from the AUSA before agreeing to the search warrant.

2. Notification of Targets of Rule 41 Search Warrant

Another big concern pointed out in the Congressional letter:  who’s going to know?  What procedures are going to be followed by the Justice Department to notify and advise targets of these search warrants that there has been a search of their stuff?

After all, this can all be done remotely.  As you read this, the government could be checking out your drive – not that they are, but how would you know?

Plus, what about innocent folk caught up in the crossfire?  What if someone is using your grandmother’s laptop without her knowledge as part of a criminal enterprise?  Her computer is infected.  That means it comes under new Rule 41.  But how does your grandmother get notified that the federal government has a search warrant, which it has executed, to review everything on her laptop?

3. Other issues raised in their letter

The lawmakers ask how Rule 41 will be used, including:

1. What about the danger of computers, laptops, tablets, or smartphones being damaged – as well as the data stored on these devises – by innocent folk who are remotely hacked by the feds?
2. What about medical devices?
3. Is this going to allow federal agents to “clean” computers?

Evidence and Criminal Law Issues, Too

Of course, the federal government will argue that this is no worry for those innocent people out there,  No worries for both U.S. citizens as well as people in Mexico, Cuba, France, Syria, Equador, Brazil.  You name the country – this applies GLOBALLY, remember.

They will argue that the amended Rule 41 works merely to help the federal law enforcement agencies to catch bad guys.  Like money laundering schemes for drug cartels, or terrorists trying to bring down the country.

Thing is, the rule’s language doesn’t provide protections against abuse on its face.  The Congressional letter addresses this big hole.  And it also questions things that criminal defense lawyers find particularly disconcerting, including:

1. What about authentication and admissibility of evidence that is found by prosecutors under this new snooping rule?
2. How is there a proper chain of custody when the federal government is hacking computers and taking things remotely from computers both here, and in other countries?
3. When is the accused notified of the search warrant in case he or she wants to fight against it?
4. When do the targets of these new Rule 42 hack-warrants ever find out that Big Brother is watching them and reading everything on their phone, their tablet, and their laptop? Much less their medical devises, smart home devices, etc.?

Federal Police Privacy Invasion?

Again, the Supreme Court of the United States okayed this new rule.  Therefore, on its face it’s constitutional.  Whether or not future case law will demonstrate it to be unconstitutional in its application has yet to be seen.

However, it’s clear that many people are very worried about this expanded power of the federal prosecutors and the FBI to hack into computers whenever and wherever they desire.

Criminal defense lawyers can fight for justice after this has happened.  That’s for courtroom fights in motions to suppress and other defense battles.

But the key here is will this be stopped before the effective date?

From the Congressional letter:

“We believe that Congress — and the American public — must better understand the Department’s need for the proposed amendments, how the Department intends to use its proposed new powers, and the potential consequences to our digital security before these rules go into effect.”

For more on search and seizures, read our web resources as well as Michael Lowe’s Case Results and this article:

PROTECTING THE PRIVACY OF CRIMINAL DEFENSE LAWYER – CLIENT COMMUNICATIONS