Senators shun DOJ reply on new hacking rules

Senators shun DOJ reply on new hacking rules

Sens. Ron WydenRonald (Ron) Lee WydenOn The Money — House pushes toward infrastructure vote Hillicon Valley — Presented by Xerox — EU calls out Russian hacking efforts aimed at member states Why Democrats opposing Biden's tax plan have it wrong MORE (D-Ore.) and Chris CoonsChris Andrew CoonsManchin raises red flag on carbon tax Dems punch back over GOP holdup of Biden SBA nominee Biden threatens more sanctions on Ethiopia, Eritrea over Tigray conflict MORE (D-Del.) are pushing back after the Department of Justice provided what they saw as an insufficient response to questions about changes to government rules on hacking as a law enforcement technique.

Unless Congress takes action, a proposal from the DOJ approved by the Supreme Court will change the rules governing hacking, which are covered by Rule 41 of criminal procedure.

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The changes would allow law enforcement to apply for warrants to hack computers even when a computer masks its location. As it stands now, law enforcement must get warrants from a court in the right jurisdiction — which is impossible when a location is obfuscated.  

It would also allow law enforcement to use a single warrant to hack networks of more than five computers, something useful in taking down networks of hacked computers used in other crimes without their owners' knowledge.                                                                   

Wyden and Coon are unsatisfied with the Department of Justice's response to an Oct.23 letter from 23 lawmakers questioning the changes. 

The letter asked the DOJ to answer specific questions about the effects of the Rule 41 change. The response from the DOJ reads as a four-page defense of the rule change.

The Wyden/Coons press release identifies a few questions they believe were left unanswered. Those included “How to prevent “forum shopping” by federal prosecutors when seeking a single warrant to hack thousands or millions of devices” and “how the government would prevent further damaging a compromised device already hacked by both a criminal and the government.”

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 “The Justice Department’s failure to answer these questions should be a big blinking warning sign about whether the government can be trusted to carry out these hacks without harming the security and privacy of innocent Americans’ phones, computers and other devices,” Wyden said in the release.

 

The DOJ has been trying to assuage fears about the new rules as of late, with a series of blog posts defending the changes, including similar points made in the letter. 

But many cyber and civil rights advocates are skeptical about increasing government hacking abilities.

The DOJ's written response to the earlier letter, dated November 18 and publicly released on Tuesday, said: "It is important to note that the amendments do not change any of the traditional protections and procedures under the fourth amendment, such as the requirement that the government establish probable cause."