Judicial Committee Gives FBI The First OK It Needs To Hack Any Computer, Anywhere On The Planet

by Tim Cushing
Techdirt
Mar. 17, 2015

The FBI and DOJ are one step closer to having one of their "keeping up with the digital Joneses" requests granted. While the default phone encryption offered by Apple (and at some point in the future by Google) still remains free of law enforcement/intelligence "Golden Backdoors," the agencies are one step closer to being legally permitted to hack nearly any computer in the world.

A judicial advisory panel Monday quietly approved a rule change that will broaden the FBI's hacking authority despite fears raised by Google that the amended language represents a "monumental" constitutional concern.

The Judicial Conference Advisory Committee on Criminal Rules voted 11-1 to modify an arcane federal rule to allow judges more flexibility in how they approve search warrants for electronic data, according to a Justice Department spokesman.

No longer bound by physical jurisdictions, the FBI will be able to perform remote searches all over the globe. This is its "21st century" fix -- a permission slip to implant malicious software in any computer, located anywhere, in order to track suspected criminals. That performing these actions may strain international relationships or break local laws is just the acceptable collateral damage inherent to modern-day crimefighting.

There's still plenty of time left before it goes into effect, and several chances that this rule change might be found to be just as potentially damaging -- both to the Fourth Amendment and rights of citizens in other nations -- as tech companies and privacy advocates are portraying it.

The judicial advisory committee's vote is only the first of several stamps of approval required within the federal judicial branch before the the rule change can formally take place—a process that will likely take over a year. The proposal is now subject to review by the Standing Committee on Rules of Practice and Procedure, which normally can approve amendments at its June meeting. The Judicial Conference is next in line to approve the rule, a move that would likely occur in September.

The Supreme Court would have until May 1, 2016 to review and accept the amendment, which Congress would then have seven months to reject, modify or defer. Absent any congressional action, the rule would take place on Dec. 1, 2016.

While the fight against the rule change will continue, its procession through the next couple of steps will likely be as quiet as its passage by the judicial advisory panel. Those in the position to shut this down are going to find it hard to argue against law enforcement and national security talking points.

Any light shed on "arcane" federal rules and laws should throw a bit on other outdated pieces of legislation, like the CFAA or the Stored Communications Act, which are more in need of an update than Rule 41. Of course, the DOJ likes those the way they are, what with their broad language and deference to law enforcement. Rather than bring American citizens "up to date" with fixes to those bad laws, we'll likely instead receive expanded government power with no corresponding bump for the governed. And as for the rest of the world -- it will be playing by our rules, whether it wants to or not.