With Rule 41, Committee Proposes to Grant New Hacking Powers to the Government
eff.org
eff.org
I would like to see how they would suggest addressing the problem that this rule change is meant to address:
1. Bad guy, B, is conducting felony F in district D.
2. B uses a computer, C, as part of this.
3. B is hiding the location of C using technological means. C may or may not be in D.
4. Law enforcement has enough evidence to satisfy the 4th Amendment requirements and get a warrant to search C remotely, but since they do not know where C is actually located, they don't know which court is the proper court to issue that warrant.
This proposed change makes it so that a judge in D could issue the warrant allowing a remote search of C, regardless of whether or not C is actually in D.
Not only is rule 41 potential overreach but it is enacted by the backdoor avoiding Congressional oversight.
Your list is too short, the EFF reason well. One could add:
5. They have copies of everything sent over the wire, so they have the contents of C at NSA H.Q. already. Just get a warrant to look at it there.
6. They already have access to all B's meta-data.
7. Conversly E commits a crime using his memory.
8. Or F commits a crime using a pen and paper, which he then hides at a remote location.
This new power purports to address a non-existent problem.
Snowden argues the FBI had the meta-data for the Apple phone, thus they already knew what was on it. So, again, why the big show about cracking it ? [1]
Locative privacy is essential for journalism and many human rights - and malicious actors could gain access to the hacking malware.
For my money the EFF argue with great caution, care and reason and actively defend civil rights against overreach.
[1] From Snowden in debate with Chomsky & Greenwald: https://theintercept.com/2016/03/30/edward-snowden-noam-chom...
That's wrong. It's being enacted by the same procedure that is used for all of the rules of the Federal Rules of Criminal Procedure, as specified by Congress in the Rules Enabling Act, which includes Congressional oversight. After the Supreme Court approves a proposed rule change, there is a delay to allow Congress to say no if they wish.
> 5. They have copies of everything sent over the wire, so they have the contents of C at NSA H.Q. already. Just get a warrant to look at it there.
You are greatly overestimating what the NSA has. They don't have everything that goes over the internet, and much of what they do intercept is encrypted with methods that they are not known to be able to defeat.
"By law, the rules and proposals are supposed to be procedural and must not change substantive rights. But the amendment to Rule 41 isn’t procedural at all. It creates new avenues for government hacking that were never approved by Congress."
> overestimating what the NSA has.
The secret rooms at AT&T, like 641A that Mark Klein whistleblew in 2006, suggests they had the potential for universal domestic collection capability of everything domestic since 2003.
Other Five Eyes may have similar hardwired intercepts abroad. Snowden's XKeyscore slide shows collection of 'nearly everything a user does online'[1].
Otherwise I agree that encryption exists that the NSA is not known to be able to defeat with the caveat that courts can currently order decryption and jail those in contempt.
[1] http://www.theguardian.com/world/2013/jul/31/nsa-top-secret-...