New 'Rule 41' makes government web surveillance easier

KANSAS CITY, Mo. - A new government ruling that goes into effect Thursday will make it easier for law enforcement to hack into your computer.

The controversial measure called Rule 41 is a change brought by the FBI hoping to bring more cyber criminals to justice. It will allow any judge to issue a warrant to remotely access computers located in any jurisdiction. However, critics of the rule say it's unconstitutional and invades citizens’ rights to privacy.

"What Rule 41 allows is for the Department of Justice to go to one judge anywhere in the country and get an order to hack into millions of computers," said Jeffrey Mittman, executive director of the ACLU of Missouri. "The ability to circumvent the expectation of privacy that we have as Americans, is really, the door is flung wide open."

It's possible that through Rule 41 American citizens would have government surveillance hacking their computer, smartphone or tablet and not even be aware of it. 

Another concern from critics is the possible damages the governments surveillance 'spy bots' may do to computers.

"There aren't enough protections against collateral damage," said Gabe Rottman, Deputy Director of the Center For Democracy And Technology.

Along with the ACLU and Google, The Center For Democracy and Technology was just another one of several organizations and companies that petitioned against Rule 41.

A response from the U.S. Department of Justice can be found here.

"The physical analogy is, you get a warrant that allows you to search every house in the neighborhood," said Rottman. "So basically, grandma's computer that's been infected by malware can potentially be searched under one of these warrants."

The FBI declined 41 Action News' request for an interview. However, they did send a transcript from what Director James Comey told reporters in May.

"It does nothing to change any of the FBI’s authorities. We still need to get a search warrant. Make a showing of probable cause. Explain to the court what we’re doing and how. It’s just the question is, what judge can issue a search warrant. In complex computer crime cases, given the nature of the dark web for example and given the nature of huge bot nets, it is problematic for some of our most important investigations. If we have to go to dozens of different magistrate judges in a bot net case, or if we’re unable to go to a magistrate judge ‘cause we can’t say for sure where the computer is. Even if we have probable cause to believe that computer is involved in serious criminal activity. It’s to solve that problem where the digital age has made physical location, a less of a determinant than it is in the pre-digital age."

The FBI said Rule 41 will help in cases where criminals have hidden their location through encryption or for criminals who have hacked computers in several jurisdictions. They also claim there was a three-year deliberation process before the Supreme Court adopted the rule earlier this year.

However, critics of Rule 41 also include lawmakers from both parties.

Oregon Senator Ron Wyden helped address concerns over Rule 41 to Congress with a letter signed by 22 other senators and congressmen. A bi-partisan bill called the Review The Rule Act was also introduced, hoping to delay Rule 41. However, it failed in Washington on Wednesday afternoon.

Rottman said Congress can still choose to address Rule 41 further down the road and that a reversal to the rule is still possible.

"Congress is allowing this rule to go into effect without actually having the debate about whether we should, in the computer context, be allowing law enforcement to search every house in the neighborhood with the use of one warrant to find a bad guy. We just haven't had that debate," he said.

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Josh Helmuth can be reached at josh.helmuth@kshb.com

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