The US Congress has seven months to prevent an even greater expansion of the government’s ability to hack into privately owned computers. Per the FBI’s request, the Supreme Court ruled that federal judges have the authority to issue ‘hacking warrants’ to any federal law enforcement agency for anywhere in the US if the suspect has ever tried to hide their location.
Furthermore, federal agents may have the authority to infiltrate any computer – regardless of the owner – if it has already been hacked by potential suspects, whether or not the owner is aware or consents. The changes to so-called “rule 41” will go into effect 1 December unless Congress acts to prevent this. This ruling has alarmed Senator Ron Wyden, the most senior Democrat on the Senate intelligence committee, who is garnering support on Capitol Hill. He told the Guardian on Friday that he fully intends to introduce a bill blocking the court’s move.
U.S. Senator Ron Wyden
This widely unnoticed decision by the SCOTUS, absent Justice Scalia, is just one more strike against the ability to maintain America’s protections against unreasonable searches in the digital age. Many of the rules were written for a world based on searching physical spaces, like a desk, and at distinct locations, like an office. Such rules are severely out dated and do not translate well in to modern times with our extensive use of online services, and where it is also possible to, in theory, search millions of computers at the same time without the knowledge or consent of American citizens.
The issue was ignited earlier this week when two judges denied search warrants for suspected users of child sex abuse websites. The FBI seized control of a website in an attempt to identify users and eventually searched hundreds of computers following a federal warrant to hack all visitors to the website issued by a Magistrate in Virginia. The government reasoned this was permissible, in part, because purveyors of the site typically attempt to conceal their location by using the Tor browser, which can protect the anonymity of internet users. In this case, the FBI was able to hack the service itself to unmask visitors to the sex abuse website.
Civil liberties advocates, while acknowledging the disturbing nature of the case, still protested. Not because they intend to defend child sex abuse material, but because, they said, domestic law enforcement should not be permitted to search potentially millions of computers based on the authority of one judge’s order.
Judges in Oklahoma and Massachusetts have ruled that the Virginia warrant which eventually targeted suspects in their territories is invalid and the evidence that they visited the sex abuse website is now inadmissible. Without digital proof that the suspects visited the criminal websites, there is essentially no case against them.
“One warrant from one judge can, in effect, reach millions of computers,” Wyden said on Friday. “This is really a big issue when you’re talking about expanding the government’s hacking and surveillance authority.”