The Hill: Last-Ditch Effort to Prevent Changes to Law Enforcement Hacking Rule Fails

A last-ditch effort in the Senate to prevent changes to a rule that will ease the process for law enforcement to use hacking in investigations failed Wednesday morning, allowing the controversial updates to Rule 41 to take effect at midnight.

Sens. Ron Wyden (D-Ore.), Steve Daines (R-Mont.) and Chris Coons (D-Del) took to the floor and unsuccessfully asked for unanimous consent to either pass or formally vote on three bills to delay or prevent updates to the process used by law enforcement to get a warrant to hack suspects’ computers. 

“We simply can’t give unlimited power for unlimited hacking,” Daines argued. 

The updates to Rule 41 address two issues raised by modern cyber investigations.  Currently, when suspects use technical means to disguise their location of their computers, it is impossible for law enforcement to determine in which jurisdiction officers must apply for a warrant. The updates would allow any judge to issue a warrant to hack a computer of a suspect hiding its location. 

The new rules would also help fight botnets — networks of hijacked computers used to send spam or as a component of attacks that flood targets with too much traffic to properly function. Currently, law enforcement needs individual warrants to hack each computer it desires, slowing the process of shutting down a botnet. The updates to Rule 41  allow law enforcement to use a single application to apply to hack five or more computers. 

“This proposed solution essentially gives our government a blank check to infringe upon our civil liberties,” said Daines. 

Digital and civil liberties advocates believe that the new rules create a boundless new tool for surveillance. They fear that warrants for computers roped into a botnet permit the government to hack innocent victims, and that granting the right to approach any judge for a warrant would mean the government would cherry-pick judges.

The updates to Rule 41 are backed by the Justice Department and have been approved by the Supreme Court. They will go into effect at midnight unless Congress prevents them.

The three senators arguing to stop or delay the changes expressed outrage that no hearings had been held. 

“The body of government closest to our people has utterly failed to weigh in on an issue that can immediately impact our constituents,” said Coons.  

Wyden and Coons offered their preferred bills for unanimous consent, and Wyden then pitched Daines’s for a full vote. Wyden wanted to halt the changes, while the other two pushed for a delay in their start point to give the Senate and House time to fully consider their implications. 

But the bid to prevent the imminent changes to Rule 41 ended quickly. After Wyden spoke, Majority Whip John Cornyn (R-Texas) immediately objected to all three bills, without waiting to hear from Coons and Daines.

“This still requires the government to come forward and do what it always has to do when it seeks a search warrant,” said Cornyn, who argued that civil liberties are not at stake. 

During his remarks, Wyden also suggested that the presidential election only made him more fearful of government overreach in law enforcement hacking. 

“We know now that it’s a new administration lead by an individual who said he wanted the power to hack his opponents the same way Russia does,” he said.

Wyden also expressed his outrage that senators would now have no response when constituents asked why the government could now hack “innocent victims” of a botnet. 

“The Senate, by not acting, has put [its] seal of approval,“ he said.

In a series of blog posts, the Department of Justice has argued that all of the hacking powers described in the rule changes are powers the government already have. The only change, Justice argued, is the procedure for getting a warrant.