When the Clock Strikes Midnight, Government Hacking Will Expand Dramatically

At midnight, changes to Rule 41 of the Federal Rules of Criminal Procedure that will significantly expand government hacking go into effect. The rule changes were issued by the little-known Advisory Committee on the Federal Rules of Criminal Procedure.

In order to stop or delay them from going into effect, Congress had to pass a bill like the Stopping Mass Hacking Act (S. 2952, H.R. 5321), the Review the Rule Act (S.3475, H.R.6341), and the Stalling Damaging Mass Hacking Act (S. 3485). New America’s Open Technology Institute (OTI) has voiced significant concerns about the rule changes, and strongly supports each of those bills, as do dozens of civil society organizations, trade associations, and companies.

The rule changes remove jurisdictional requirements, which invites forum shopping, where the government applies for warrants from judges who are considered to be "prosecutor friendly" and thus more likely to issue a warrant with less scrutiny of the government's application. Further, it allows a magistrate judge to issue a single warrant to hack thousands - even millions - of devices. This expansion of government hacking will pose unique and significant threats to both privacy and cybersecurity.

The following quote can be attributed to Robyn Greene, policy counsel and government affairs lead at New America’s Open Technology Institute:

“The failure to delay changes to Rule 41 and give Congress the chance to debate and consider the impact on privacy and cybersecurity is disappointing, to say the least.  More concerning is that Congress is allowing this rule change, which significantly expands government hacking - a tactic that is more privacy invasive than wiretapping and one that DOJ has been using for two decades - without having established any rules of the road to protect Americans’ constitutional rights. Though Congressional inaction has allowed this moment to arrive, Congress must now engage in serious oversight by holding hearings and drafting legislation to establish an effective and protective legal framework for government hacking.”