Amidst an atmosphere of government agencies overstepping their authority in the surveillance arena, some shocking news has been revealed. In what amounts to an unconstitutional power grab, the FBI is seeking permission to change its rules over warrantless and warranted search and seizure. If granted the agency would have the green light to unleash its capabilities on computers across America and beyond. Expectedly, the move has civil liberties groups up in arms.
The FBI proposal is due to come before a relatively obscure regulatory body, the advisory committee on criminal rules, which meets Nov 5 to discuss the issue. The committee will be addressed by proponents for the changes as well as antagonists. That the group is meeting under the cloud of a rousing thumping by the administration’s party in the national elections the previous day may alter the outcome. The election results represent a repudiation for the president and the administration. High on the list of discontent among voters was the obtrusive, anti-privacy posture of this administration.
Regarding the FBI initiative, Ahmed Ghappour, an expert in computer law at the University of California, said, ”This is a giant step forward for the FBI’s operational capabilities, without any consideration of the policy implications. To be seeking these powers at a time of heightened international concern about US surveillance is an especially brazen and potentially dangerous move.” Ghappour, incidentally, will be addressing the hearing on Nov 5.
Under present operating rules (known as Rule 41 of the federal criminal procedure), the FBI is permitted to effect searches if it has a court-approved warrant. Currently, the searches have to be targeted, focused searches on specific locations where suspected criminal activity is occurring. And it must be approved by judges located in that same district. But the FBI, not satisfied with such an arrangement seeks broader authority.
What the FBI proposes to the committee is a judicial warrant that would allow them to hack into any computer, regardless of location. In so doing they aim to render useless computers using location-hiding tools- such as Tor- that obscured a computers location. Specifically, they wish to insert a clause in the language that would allow judges to issue warrants to grant them ’remote access” to computers located within or outside the district if the technology is deemed to be attempting to conceal data. What is especially alarming is that they want the new powers applicable to any criminal investigation- not just terrorism. This is yet another raising of the surveillance stakes.
The FBI process is called ’network investigative techniques”. These involve the surreptitious installation of malicious software, or malware, onto a computer that enables federal agents to control the computer. It effectively downloads all its digital contents, can switch the camera or microphone on or off and even command other computers in its network. “This is an extremely invasive technique,” said Chris Soghoian, chief technologist of the ACLU. Like Ghappour he is also addressing the committee. He went on, ’ We are talking here about giving the FBI the green light to hack any computer in the country or around the world.” This move by the FBI appears to be an end-run through a back door. They’re attempting to soft-sell what is a serious, far-reaching issue.
Similarly, Janice Granick, director of civil liberties at the Stanford center for internet and society, said that ’this is an investigative technique that we haven’t seen before and we haven’t thrashed out the implications. It absolutely should not be done through a rule change-it has to be fully debated publicly, and Congress must be involved.” We have a recently revealed example of how deceptive the FBI can be in a recent article published in this space about the agency imitating the Associated Press in attempting to nab a suspect.
Aside from the dire domestic implications, in a broader context changing the rules puts long-term international relationships at peril since there is not Fourth Amendment protection for other countries. De facto, the US courts in issuing a warrant would in effect be allowing searches outside the US. Gappour feared this warning, “In the age of cyber attacks, this sort of thing can scale up pretty quickly.” This is evident during the FBI’s Silk Road case where it is suspected that the FBI hacked into a server in Reykjavik, Iceland in attempting to prosecute Ross Ulbricht, the alleged founder of the billion-dollar Silk Road drug site. The FBI denies any clandestine, nefarious activity in that case.
Hopefully, with the American electorate registering displeasure with Obama’s policies, of which unbridled law enforcement surveillance is one, the committee will deny the FBI rule change request and kick it into a more public arena where it will receive more scrutiny. After which, it should deliberated and promptly relegated to the scrap heap of bad ideas.