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Thanks to a recent favorable Supreme Court ruling, the FBI may soon be able to unleash its “network investigative techniques” on computer users across America and the world. Specifically, the FBI’s capabilities involve installing software onto a target computer that allows agents to download its contents, switch on its camera or microphone, and even gain access to the computer’s network.
Judges can issue “hacking warrants” authorizing the FBI’s activities anytime there is evidence that a suspect has tried to hide his or her digital identity. Privacy advocates are alarmed that a single federal judge can issue a warrant granting the FBI access to millions of computers across national and international jurisdictions.
The FBI’s expanded digital spying powers will be authorized by a change to Rule 41 of the Federal Rules of Criminal Procedure. The Supreme Court approved the change proposed by the Department of Justice, and now Congress has until December 1, 2016 to challenge the amendment to the rules.
The Department of Justice applied for the change in 2014 because in its original form Rule 41 only addressed search warrants targeting suspected criminal activity taking place within a judge’s jurisdiction, which is the geographic area in which a judge has authority. The FBI found itself limited in its ability to investigate criminal organizations operating on networks supported by computers and servers located across several jurisdictions.
The amendment to Rule 41 inserts a clause allowing federal judges to issue warrants authorizing “remote access” to computers “located within or outside that district” when the “district where the media or information is located has been concealed through technological means.” The change specifically allows federal agents to spy on computers that have been “anonymized,” for example through the use of the Tor browser.
The FBI’s network investigative techniques are geared to dismantle dangerous criminal organizations, from child porn rings to terrorist cells—but at what cost? According to Democratic Oregon Senator Ron Wyden, the “amendments will have significant consequences for Americans’ privacy and the scope of the government’s powers to conduct remote surveillance and searches of electronic devices.” Senator Wyden is expected to introduce a bill against the Rule 41 changes, which could negatively impact Americans’ Fourth Amendment rights.
One issue is that the rule change would give the FBI access to the computers of innocent parties or even the victims of cybercrime. Any computer the FBI suspects has been hacked may be targeted with surveillance. This could mean that a single search warrant for a cybercrime could lead to the surveillance of thousands or even millions of computers belonging to everyday Americans.
The FBI’s new spying powers would not only affect Americans, but computer users across the planet. In the wake of revelations that American intelligence services have been spying on foreign governments—including allies—for years, the expansion of the FBI’s international spying powers “is an especially brazen and potentially dangerous move,” according to Ahmed Ghappour, an expert in computer law at University of California, Hastings College of the Law.
At Luftman, Heck & Associates, we are passionate about defending the rights of ordinary Americans in the face of a criminal justice system that favors the government. Whether you’re facing a speeding ticket or a felony charge, we have the experience and tenacity to get you the best possible outcome. Our Columbus criminal defense attorneys can help. Call us today at for a free and confidential consultation.