The FBI is pressing the little-known Advisory Committee on Criminal Rules to give it expanded authority to remotely hack and spy on computers in the U.S. and abroad.
Civil liberties and privacy advocates are calling the proposal a “new, expansive power” that could allow the government to collect private data, raising “significant” First and Fourth Amendment concerns. The FBI is arguing the change is a necessary update to outdated rules on territorial limits of warrants for electronic storage searches.
“Possibly the broadest expansion of extraterritorial surveillance power since the FBI’s inception,” said Ahmed Ghappour, a computer law specialist at the University of California-Hastings College of the Law who will address the committee next week.
Currently the Federal Rules of Criminal Procedure only allow magistrate judges to issue search warrants within their jurisdiction, with some narrow exceptions.
The FBI believes the exceptions don’t tackle the realities of modern Internet crime investigations. Frequently, the FBI can identify a computer it wants to search, but can’t locate the computer itself.
“Criminals are increasingly using sophisticated anonymizing technologies when they engage in crime over the Internet,” the FBI said.
And cyber crime investigations often involve searching multiple computers simultaneously in different jurisdictions.
The rules don’t “directly address” those “increasingly common situations,” the FBI noted.
The American Civil Liberties Union (ACLU) says it's “sympathetic” to the FBI’s challenges fighting cybercrime but thinks the bureau is being coy about the “invasiveness” of these proposed techniques.
“The government seeks to conduct its searches using techniques that pose a serious risk to cybersecurity, and that may fail” the Fourth Amendment’s unreasonable search and seizure test, the civil rights group said in comments on the proposal.
“The government does not describe the almost incomprehensibly large storage capacity of many cloud-based services, the vast amount of personal information now stored on the cloud, or the dizzying array of cloud storage services to which a computer may be connected.”
The ACLU will also speak before the committee on Wednesday.
The debate occurs amid a number of recent incidents that have stirred questions about federal law enforcement’s digital tactics.
The Drug Enforcement Agency is being sued, after a woman alleged the agency created a fake Facebook profile using her identity. She said officers lifted private photos from her phone to surreptitiously create the fake account.
The FBI also acknowledged this week it fabricated an Associated Press story on a fake Seattle Times website so officers could plant tracking software on a suspect's computer.