Issue in Focus
May 27 2016
Should a Department of Justice prosecutor under the direction of President Obama’s Attorney General have the power to hack into the phone or computer of virtually anyone in the United States if they have convinced just one sympathetic judge of their choosing to give them a warrant to do so?
That is the question the Supreme Court of the United States sent to Congress in late April, and if Congress does not act before December 1st, Attorney General Loretta Lynch will be given this new power.
The issue stems from the arcane way the procedural rules that govern how federal criminal trials are conducted (a.ka. the Federal Rules of Criminal Procedure) are written and changed.
For two years now, the Obama administration has pushed for changes to Rule 41(b)(6)(B) that would allow a single judge to issue a nationwide warrant empowering the federal government to hack into any computer that they believe may be part of a botnet. Last month the Supreme Court approved that new rule.
Botnets are a tool used by hackers to commandeer computers by often unsuspecting third parties towards the hackers own ends, whether it be sending spam email, coordinating a denial-of-service attack, or distributing pornography.
The new rule, if it is adopted, would revolutionize the manner in which the government is able to access your phone or computer. Currently, the government must apply for a single warrant in the judicial district where the search would take place. Under the new rule, however, this deliberate and focused process would be scrapped in favor of a nationwide warrant to search millions of devices anywhere across the country.
This is not just a “procedural” rule change. This would change the substantive privacy rights of every American.
Congress must step up its oversight of this issue. Under current law, Congress can stop the change to Rule 41(b)(6)(B) from going into effect with simple majority disapprovals from both the House of Representatives and the Senate. But we have to act before December 1st, otherwise the change automatically goes into effect.