Sen. Ron Wyden (D-Ore.) and other like-minded senators have come out forcefully against the pending change to federal judicial rules that would expand judges’ ability to authorize remote access hacking of criminal suspects’ devices.
On Thursday, Wyden submitted a bill that aims to stop the proposed amendments to Rule 41 dead in its tracks. The entire bill is one sentence long: “The proposed amendments to rule 41 of the Federal Rules of Criminal Procedure, which are set forth in the order entered by the Supreme Court of the United States on April 28, 2016, shall not take effect.”
For now, the bill is co-sponsored by two other Democrats, and two Republicans, Sen. Rand Paul (R-Ky.), and Sen. Steve Daines (R-Mont.). A companion bill is expected in the House of Representatives.
As Ars has reported previously, for more than two years now, the Department of Justice has pushed to change Rule 41 in the name of being able to thwart online criminal behavior enabled by tools like Tor.
Last month, the Supreme Court passed the proposed change to Rule 41 and sent it to Congress on Thursday, which will have until December 1 to modify, reject, or defer the proposal. If the House of Representatives and Senate do not pass a resolution in favor by simple majority, the revisions will become law that same day.
For now, Rule 41 allows these junior judges to authorize electronic searches only within their own judicial district. In April 2016, two federal judges in Massachusetts and Oklahoma suppressed evidence in two related child pornography cases because a magistrate in Virginia authorized the FBI to seize and operate Playpen, a Tor-hidden site, for 13 days. In doing so, investigators also deployed malware that disrupted Tor’s privacy protections and revealed over 1,000 true IP addresses. The investigation led to 137 prosecutions, including the two men in these two states. Given the success in those states, it seems plausible that other similar cases could also be jeopardized.