Rule 41 might be the least interesting name for one of the most significant factors this year in security and privacy.
Why? Because the rule is about to change, allowing the FBI to vastly broaden its spying powers.
Earlier this year, the Supreme Court proposed a new rule that would allow US judges to issue warrants outside their jurisdiction. Under existing rules, judges can only issue orders within their jurisdiction, often only a few miles across or covering a few local districts. The hope was that this rule change would make cases more efficient, such as in cyber-related cases, which typically span multiple districts and even countries.
But civil liberties and privacy groups argue that the change would expand the FBI’s hacking and searching capabilities to any computer or device in the world.
Simply put: all it would take would be for the FBI ask a friendly judge to sign off on a search warrant that would let the agency use its so-called network investigative techniques — or NITs — to carry out hacks and conduct searches on computers and devices potentially anywhere in the world.
We’ve seen good uses of that hacking effort, such as catching users of a dark web child porn site, but one prominent privacy-minded lawmaker said in a statement that the rule change “would allow the government to get a single warrant to hack an unlimited number of Americans’ computers if their computers had been affected by criminals, possibly without notifying the victims.”
Here’s the twist. The proposed rule change will automatically go into effect on December 1 — that’s a month away — unless Congress intervenes.
And therein lies the problem. The decision was already made, but Congress — as indecisive and undisciplined as ever — would have to actively make a change. With the impending election, most have been preoccupied with other things. It’s been mostly talk, and little action. And it’s not as though Congress hasn’t had time. In the past six months, it’s done almost nothing to stop the rule change from going into effect, except ask a few questions and engage in occasional loud and public complaining.
Where lawmakers made some progress was a ten-line bill, which would have effectively killed the rule change. In just four words, the bill would say that the proposed change “shall not take effect.”
But neither have made it into committee. With a month to go before the change goes into effect, there’s almost no chance of the bill making it onto the floor of Congress, let alone make it into law.