Computers and Warrants: Some Senators Oppose Justice Plan

A bipartisan group of senators took a first step Thursday to blocking a Justice Department proposal that they say would make it too easy for the government to hack into computers during investigations. The proposal would change a rule of federal criminal procedure that generally permits judges to approve warrants for property searches only in the districts where they serve.

Justice Department officials say that requirement is not practical in complex computer crime cases where investigators don’t know the physical location of the device they want to search. In instances when cybercriminals operate on networks that conceal their identity and location, the government wants to ensure that any magistrate in a judicial district where a crime may have occurred can sign off on a search warrant that gives investigators remote access to the computer.

The Obama administration says that authority is equally critical in cases involving botnets, which are networks of computers infected with a virus that spill across those districts. As it now stands, federal officials say, they might have to apply for nearly identical warrants in 94 different courthouses to disrupt a botnet. Technology companies including Google have aligned with civil liberties advocates in opposing the proposal, which they say raises important privacy concerns.

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A group of senators on Thursday introduced legislation to block the proposal, which has cleared several administrative hurdles, including approval by the Judicial Conference of the United States and the Supreme Court. The change would take effect at the end of the year unless Congress rejects it. The lawmakers, including Sens. Rand Paul, R-Ky., and Ron Wyden, D-Ore., say the proposal would give the government broad new surveillance powers and allow access to potentially millions of computers on a single warrant. A House bill is expected, too.

“When the country is in the middle of one of the most heated presidential campaigns in a long time, the Justice Department is trying to maneuver a vast expansion of the government’s hacking authority,” Wyden said in a recent interview with The Associated Press. Department officials insist the rule change would not give investigators any additional authorities to search and seize a computer, or change the government’s requirement to have probable cause to obtain a warrant. They say they simply want to ensure that courts can be asked to review search warrant applications in cases where investigators can’t locate the computer.

“This rule change would make clear that where the suspect has hidden the location of his computer using technological means, agents know which judge to go to apply for a warrant,” Justice Department spokesman Peter Carr said in a statement. The proposal would help, he said, in cases of online child sexual exploitation in which criminals upload videos while masking their location. The rule change would help investigators go to court to obtain a warrant to discover where they are located.

“One recent investigation of this sort rescued 38 children who were suffering ongoing sexual abuse,” Carr said. But Wyden and other senators say the government is minimizing the impact that the rule change would have. He called the proposal an “enormous change from the current rule.” “I don’t think the (Justice Department) should be able to just wave its arm and say this really isn’t doing anything new when in fact this is a major policy change that warrants the Congress’s participation,” he said.

Associated Press