Search and Seizure Procedure Changes – What’s Good for the Goose…
September 16, 2016
Sometimes it’s difficult to know when to follow the rabbit down the hole when you see headlines pass by on Facebook. When I recently read the article at The Hacker News, STOP Rule 41 – FBI should not get Legal Power to Hack Computers Worldwide, I found myself with nagging questions, though, so I’ve been clicking and reading. (I’m not going to try to explain anything in too great a detail, as there are plenty of articles out there doing that already, some of which I have provided links for here.)
The first thing I wanted to know was what the heck Rule 41 was. Turns out it’s from the Federal Rules of Criminal Procedure, covering Search and Seizure. It’s the set of rules that guide criminal prosecution. The change gives judges the authority to issue search warrants not only for computers within their
As it currently stands, a New York judge can only authorize the FBI to hack into a suspect’s computer in New York. However, the change gives judges the authority to issue search warrants not only for computers within their jurisdiction but also outside of their jurisdiction. This means the FBI can get a green light to hack any computer anywhere in the world. And if the FBI gets turned away by one judge, they can move on to another, until they get that green light.
“I’m not doing anything wrong, so why is that a big deal to me?” … you might say. One of the reasons for the change is to allow the FBI more options in fighting botnets, by hacking into the victim’s computers. Most people who have computers that are infected are not aware their computer has been co-opted by a botnet. But if you are the victim of a hacker, you can now also find your computer ransacked a second time, and your data used without your permission or knowledge. In a June ruling by a Virginia federal district court, a judge displayed a cynical outlook that I find a bit unnerving. He believes that if you have a computer connected to the Internet, that you essentially have no “reasonable expectation of privacy” as it will assuredly be hacked by the bad guys anyway.
This is where I find myself a bit on the fence. I hate the wasted time I’ve had to spend over the years in dealing with spam and hacking (including one Thanksgiving evening over a decade ago spent recovering defaced client websites from a hacked server.) I would love for the FBI to catch those who make life more frustrating for the rest of us. But at what cost? Technology is a cat and mouse game to be sure… but I believe there is a danger in becoming too calloused to the concept of privacy and freedom. The way I’ve come to look at it, it’s like the question of whether it’s better for an innocent man (or woman) to go to jail than for a guilty one to go free. To suggest it’s better for the innocent person to get locked seems to me to be a slippery slope. To ensure safety and security we just keep locking more and more of us up preemptively.
In any case, the change to Rule 41 will go into effect on December 1st, unless Congress passes legislation to stop it. If you to make your voice heard against the change, one way you can do so is the No Global Warrants petition.