A legal quirk just gave the Department of Justice more power to hack our devices

Thanks to a quirk in U.S. law, an obscure committee made up of unelected advisors has written an amendment to a rule that greatly expands the federal government’s power to collect data on American citizens and circumvented Congress straight to the Supreme Court for approval. If nothing is done to change or reverse the amendment, the surveillance state in America just threw out an even larger dragnet.

It’s called Rule 41 and the amendment was written by an advisory panel of the Administrative Office of the US Courts, according to Ars Technica. Essentially, the rule allows law enforcement to search multiple computers without getting multiple warrants. A judge could issue one blanket warrant that covers any computer in any jurisdiction regardless of if a crime has been committed.

The Justice Department loves this idea. Ars explains:

Peter Carr, a Justice Department spokesman, told Ars last week that the government wants judges to have Rule 41 powers “to ensure that criminals using sophisticated anonymizing technologies to conceal their identities while they engage in crime over the Internet are able to be identified and apprehended.”

What this means is that innocent individuals, even those overseas, can be caught in a government search dragnet, and the usual requirement that a warrant say with particularity who and what the authorities are searching for is out the door. And the rule that the government provide the target with a notice that a search took place presents new challenges.

And yet, our elected officials in Congress didn’t vote on this expansion of powers. But there is a way they can change the course of this law. Right now, Congress has the amended rule before them and have until December 1 to reject it or change it. If they don’t, it becomes law.

Sen. Ron Wyden (D-OR) released a statement of concern over the proposed amendment:

Under the proposed rules, the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once; and the vast majority of the affected computers would belong to the victims, not the perpetrators, of a cybercrime. These are complex issues involving privacy, digital security and our Fourth Amendment rights, which require thoughtful debate and public vetting. Substantive policy changes like these are clearly a job for Congress, the American people and their elected representatives, not an obscure bureaucratic process.

The implications of this law, if not handled by Congress, are far reaching. Some of those are detailed by the Electronic Frontier Foundation, a group that defends digital privacy rights, here. This is very important because it will also affect those of us that use privacy tools online. EFF states:

[A]nyone who is using any technological means to safeguard their location privacy could find themselves suddenly in the jurisdiction of a prosecutor-friendly or technically-naïve judge, anywhere in the country.

Instapundit gets it right, and therefore gets the last word:

Expanded government power without anyone taking responsibility. It’s the American way, in the 21st Century.