WASHINGTON, D.C. — The Rutherford Institute has denounced a stealth effort by the Department of Justice to give law enforcement and intelligence agencies the power to remotely hack into personal computers and mobile devices, implant malicious software on computers, and rummage through the personal contents of those computers in the absence of criminal activity by the devices’ owners. The DOJ’s proposed changes to the Federal Rule of Criminal Procedure 41 have been justified as a way to fight cybercrime and make it easier for law enforcement to track down cyber criminals who use tools such as Tor, botnets or malware to mask their true location.
With the U.S. Supreme Court already having rubberstamped its approval to the Rule 41 amendment allowing the government to expand its surveillance powers, Congress has until December 1 to either block or approve the change. In a letter to Sen. Ron Wyden (D-Or.) who has publicly announced his intent to introduce legislation to block the amendments, Rutherford Institute attorneys set forth their objections to the proposed Rule 41 changes, which they characterize as a significant expansion of the surveillance power the government may use to spy on its citizens.
“Once again, the government is insisting that it needs greater powers to combat cybercrime, even if it means cutting through the very foundations of freedom in order to fight these modern devils,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Of course, it’s a devil’s bargain—much like the Patriot Act was—that attempts to sell us on the idea that safety, security and material comforts are preferable to freedom. The problem with these devil’s bargains, however, is that there is always a catch, always a price to pay for whatever it is we valued so highly as to barter away our most precious possessions. In the end, as we saw with the Patriot Act, such bargains always turn sour.”
Insisting that the government needs greater powers to fight cybercrime, the Department of Justice and federal law enforcement agencies proposed amendments to the Federal Rule of Criminal Procedure 41 which would allow a judge in any district affected by criminal activity to issue a warrant to search electronic storage media and seize and copy stored information if the location of the electronic storage media has been concealed through technological means. Additionally, for an investigation of computer crimes such as the distribution of computer viruses or malware involving more than five computers, the proposed amendments allow a single magistrate to issue a warrant to search numerous computers, including computers that have been infected by the virus or malware regardless of whether the computer’s owner is suspected of involvement in any criminal activity.
These amendments would greatly expand federal investigators’ ability to engage in remote surveillance, which involves the secret installation of data extraction software on a computer. Once installed, the software allows government agents to remotely search a computer’s hard drive and other data storage, transmit data back to the agents, and to even remotely activate and control attached cameras and microphones. In raising its objections to the proposed changes to Rule 41, The Rutherford Institute points out that the proposed rule changes impose no time limit on how long the data extraction software may remain on computers, allowing for ongoing surveillance, and do not require that persons be notified that their electronic storage is being searched by the government.