New FBI cybersurveillance power causes civil liberties alarms

WASHINGTON — Over the past several years, FBI Director James Comey has turned attention onto an issue where the increasingly common use of encryption technology prevents the federal agency from accessing information it needs, even with a court order.

This challenge — known as “going dark” — stems from the increasing number of channels for communication, making it hard for law enforcement to pinpoint where chatter that pertains to criminal investigations is  occurring. But a recent power granted to law enforcement agencies through a change to Rule 41 of the Federal Rules of Criminal Procedure gives the FBI much more leeway to try and break into encrypted communications.

“The changes will increase the ability of the FBI to obtain authorization to hack into devices globally, no matter if they are in Washington, DC, China, Brazil, or Spain. This means the government will be able to directly access personal information that’s in a foreign country in cases where the officials should go through the Mutual Legal Assistance Treaty process,” said Amie Stepanovich, U.S Policy Manager of Access Now, an international non-profit group dedicated to open Internet. “The rule 41 changes will likely increase the FBI’s ability to bypass that encryption, albeit without any of the safeguards that we think are necessary and should be promulgated in hacking-specific legislation.”

The change — assailed by critics as an assault on privacy rights — allows a single warrant to grant permission to access multiple devices across or even outside the country, streamlining the process for law enforcement to get the permission to extract the information they need. Previously, judges could only issue warrants to access computers physically located within their jurisdiction.

However, Justice Department officials said that the change does not grant sweeping powers to agencies; instead, they still have to follow the court-supervised framework currently in place. “This change would not permit indiscriminate surveillance of thousands of victim computers — that is against the law now and it would continue to be prohibited if the amendment goes into effect,” Assistant Attorney General Leslie R. Caldwell of the Criminal Division wrote in a blog post.

A bipartisan group of senators — Ron Wyden, D-Ore.; Chris Coons, D-Del; and Steve Daines, R-Mont. — attempted to delay Rule 41, but was not able to do so.  Wyden criticized the FBI in attempting to push forward the change, and said he would attempt to gut it when Congress reconvenes in January.

“The FBI went to enormous lengths to try to make this seem like a really modest, innocuous housekeeping kind of thing,” Wyden said. “I just think that’s really misleading. This is a dramatic change in surveillance policy, without any hearing, no real public involvement.”

Even with the new powers, law enforcement must respect the liberties of the American people, said Thomas O’Reilly, the director of Rutger University’s Police Institute.

“Law enforcement has an obligation to do what it needs to do to protect the American public within the provisions of privacy and civil liberty,” O’Reilly said. “There will be bad guys who use technology to try to beat the system, and hopefully, there will be law enforcement people consistent with the system who use technology to beat the bad guy.”