© Chris Helgren / Reuters
The US court system has a process through which the Federal Rules of Criminal Procedure are amended, and because these decisions are not made by elected officials, they are not supposed to deal with changes in the law or enacting policy.
Changes to Rule 41, however, will remove the limits on how the FBI can obtain search warrants for computer networks. As of now, a federal judge may authorize the feds to install malware to hack computers suspected to be involved in criminal activity. That judge may only issue the warrant when the device is in his or her jurisdiction, though. That barrier is scheduled to be lifted December 1, unless Congress prevents it.
It means it will be legal for the government to "hack anyone," as Senator Ron Wyden (D-Oregon) puts it in an op-ed article he helped write for Wired magazine Wednesday.
"The unintended consequences could be staggering," the piece reads.
"With just six work weeks remaining on the Senate schedule and a long Congressional to-do list, time is running out," it continues. The article calls for passage of Wyden's Stop Mass Hacking Act to block the change.
Proponents of the automatic change say it will assist law enforcement in tracking cyber criminals, including terrorists and child pornographers. But the federal government's secrecy surrounding its own cyber tools leaves skeptics doubting the official claims.
In an interview with RT, Derrick Broze of Activist Post warns the Rule 41 change represents "one more step in the march toward a total surveillance state."
While that doesn't ring of much optimism for the average citizen, Broze also points out that the government itself may face unintended consequences as well.
"It seems obvious that any tool the government puts out there with the intention of trying to catch criminals could easily be reverse-engineered and used against them or other innocent Americans," Broze says, adding that the government could open itself up to lawsuits as a result.
Senator Wyden made similar points in a Senate floor speech on September 8, citing "scores of cybersecurity experts" who have written in opposition of the Rule 41 change. One of their key points, he said, was that rather than helping victims of cybercrimes, the expanded surveillance powers would risk further harm.
"You don't punish victims twice in America," Wyden said. "You wouldn't punish the victims of a tax scam or a Ponzi scheme with a painful audit. That's what can happen here."
While awareness of the Rule 41 change is only now reaching the mainstream, major technology firms have opposed it for some time. In February 2015, Google wrote the change had "constitutional, legal, and geopolitical concerns."
More recently, Google has joined 49 other tech companies in a coalition united under the banner of "No global warrants."
Pleas for congressional hearings on the matter have yet to be answered. In a June letter publicly released Friday, it is revealed that Senator Patrick Leahy (D-Vermont), the top ranking minority member on the Judiciary Committee, and Senator Mike Lee (R-Utah), who also is on the committee, asked that Chairman Chuck Grassley (R-Iowa) call a hearing on proposed Rule 41 changes.
"We recognize that the changing technological landscape and evolving threats require law enforcement to employ new techniques to investigate and prosecute crime," the letter reads ,according to Politico. "But these issues should be debated in a public forum by the American people and their elected representatives."
Comment: Congress will do nothing to stop Rule 41.