- The Washington Times - Thursday, December 1, 2016

Federal investigators were granted expansive new hacking powers Thursday despite an 11th-hour effort in the Senate to postpone implementation pending congressional review.

An unsuccessful plea for intervention spearheaded on the Senate floor Wednesday afternoon by Ron Wyden, Oregon Democrat, resulted in the Justice Department officially adopting a controversial update Thursday morning to the statute that deals with the issuing and execution of search warrants.

As a result of changes to Rule 41 of the Federal Rules of Criminal Procedure, FBI officials and other law enforcement agencies can legally search millions of computers anywhere on the planet with a single warrant. The revision was approved earlier this year by the Supreme Court absent congressional debate, and went into effect Dec. 1 after the legislative branch failed to take action.

Justice Department officials who endorsed the update said the revision will let authorities more effectively conduct cybercrime investigations by giving prosecutors more options when attempting to narrow in on suspects who utilize anonymizing technology to obfuscate their identity and location.

Opponents have called into question the wide-ranging security and privacy implications involved, however, and have said the update essentially authorizes authorities to conduct mass hacking against potentially millions of innocent computer users with a single search warrant.

“This rule change would give the government unprecedented authority to hack into Americans’ personal phones, their computers and their devices,” Mr. Wyden said Wednesday, adding that allowing Rule 41 to take effect would be one of the Senate’s “biggest mistakes in surveillance policy in years and years.”

Mr. Wyden touted three bills in the Senate Wednesday that would have either delayed or prevented those changes from taking effect, but each one was opposed by Majority Whip John Cornyn, Texas Republican, who claimed that critics of the changes were fueled by “misplaced” concerns.

“We always try to strike the right balance between individual privacy and safety and security and law enforcement,” Mr. Cornyn said, adding that warrants issued under the changes will still require probable cause and can be challenged by a defendant.

Nonetheless, Mr. Wyden said that his colleagues owed it to their constituents to at least debate the matter before expanding the government’s hacking powers.

“If we can’t pass bills with respect to mass surveillance, and we can’t have hearings, we at least ought to have a vote so that the American people can actually determine if their senators support authorizing unprecedented, sweeping government hacking without even a single hearing,” Mr. Wyden said at Wednesday’s hearing.

“[I]nstead of engaging in a deliberative process that involves the American people, the Department of Justice decided to circumvent Congress and seek this rule change behind closed doors,” Sen. Steve Daines, Montana Republican, said in a blog post Thursday. “It is frankly alarming that proponents of this rule insist the changes go into effect immediately. Why not give Congress the time it needs to deliberate this policy and conduct this debate in a way that is transparent to the American people?” he asked.

U.S. Assistant Attorney General Leslie Caldwell claimed earlier this week that the benefits expected to arise from the rule change outweighed any potential damages.

“The possibility of such harm must be balanced against the very real and ongoing harms perpetrated by criminals — such as hackers, who continue to harm the security and invade the privacy of Americans through an ongoing botnet, or pedophiles who openly and brazenly discuss their plans to sexually assault children,” she wrote in a blog post.


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