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A proposed change to a little-known criminal procedure “would make us less safe, not more” by allowing law enforcement agencies to hack an unlimited number of computers with a single warrant, Sen. Ron Wyden said Thursday.
Wyden (D-Ore.) spoke on the Senate floor about the proposed change to Rule 41 of the Federal Rules of Criminal Procedure, which covers the limits of search and seizure. The modification would would simplify the process for a judge to issue a search warrant for a remote search of an electronic device. It would allow judges to authorize the search of any number of devices anywhere in the United States. Because of the way the rule making process works, the change, proposed by the Department of Justice, will go into effect on Dec. 1 unless Congress passes legislation to prevent it.
In May, Wyden introduced a one-sentence bill that would prevent the change. The Senate has taken no action on the bill thus far and Wyden on Thursday warned that continued inaction on the issue would be dangerous.
“If the Senate does nothing, if the Senate fails to act, what’s ahead for Americans is a massive expansion of government hacking and surveillance powers,” he said. “If the Congress just says, aw gee, we have other things to do, these rules go into effect.”
“What’s ahead for Americans is a massive expansion of government hacking.”
Wyden asked the Senate to pass his bill by unanimous consent, but Sen. John Cornyn (R-Texas) objected, saying that the change to Rule 41 was a simple one that would help law enforcement agencies know which venue is the correct one to ask for a warrant.
“These aren’t substantive changes. The government must still go before a judge and make the requisite showing in order to get a search warrant,” Cornyn said. “I can’t imagine circumstances where we’d say the Fourth Amendment is trumped by the right to privacy. We can’t let that happen and that’s why these changes are so important.”
Cornyn cited recent reports about hacks of the election systems in some states, possibly by foreign governments, as evidence of the need for the change.
“This isn’t a time to retreat and allow cyberspace to be run amok by cybercriminals,” Cornyn said. “This is a very sensible tool of venue.”
Wyden said there is nothing “routine at all” about the change to Rule 41, and scolded his colleagues for not taking any action on his bill.
“The government can search potentially millions of computers with one single warrant issued by one single judge. This isn’t an issue where the Seate can do some kind of ostrich act and do nothing. In my view, the limits of search and seizure are unquestionably an issue for Congress to debate.”