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Congress Needs More Information Before the Government’s New Hacking Powers Kick in

Friday, October 28, 2016 10:17
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The federal government is set to get massively expanded hacking powers later this year. Thankfully, members of Congress are starting to ask questions.

In a letter this week to U.S. Attorney General Loretta Lynch, 23 members of Congress—including Sens. Ron Wyden and Patrick Leahy and Rep. John Conyers—pressed for more information and said they “are concerned about the full scope of the new authority” under pending changes to federal investigation rules.

The Department of Justice kickstarted this process by proposing changes to Rule 41 of the Federal Rules of Criminal Procedure, which governs how the government obtains search warrants from federal magistrate judges. Specifically, the changes to Rule 41 would let judges grant warrants allowing the government to remotely hack into and search computers and other devices when those devices are part of a “bot-net” or when the government isn’t sure where the devices are located.

Giving the government broad authority to hack into and search a computer no matter where it’s located poses huge privacy and security concerns for Internet users all over the world, and if Congress doesn’t act, the changes will go into effect on Dec. 1.

These changes are going to result in a lot more government hacking, and it’s on track to happen without giving Congress the chance to put in safeguards to limit when law enforcement can hack into devices and safeguards to protect the privacy of Americans. In fact, Congress is still asking basic questions about how these new tools will be put to use. That alone is reason enough to hit the brakes before we vastly expand the government’s authority.

“We believe that Congress—and the American public—must better understand the Department’s need for the proposed amendments, how the Department intends to use its proposed new powers, and the potential consequences to our digital security before these rules go into effect,” the lawmakers wrote.

They specifically asked Lynch whether the Justice Department will notify the owners of devices that have been searched and to “describe how the principle of probable cause may be used to justify the remote search of tens of thousands of devices.” They also raised concerns that government hacking “may have unintended consequences on Internet-connected devices, from smartphones to medical devices” and that, without physical boundaries on warrants, prosecutors could seek out prosecution-friendly judges who are more likely to grant these warrants.

The lawmakers asked Lynch to respond within two weeks “in light of the limited time for congressional consideration of the proposed amendments.” We’ll be waiting for the Justice Department’s answers.

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