The Niskanen Center is proud to join today with dozens of other organizations in a concerted effort to show wide opposition to changes offered to Rule 41 of the Federal Rules of Criminal Procedure. These changes, if greenlighted on December 1st, 2016, would permit an unprecedented expansion of warrant-issuing authorities to U.S. magistrates.

Among other concerns, these rules would:

  • allow judges to issue warrants to “remotely access, seize, or copy data” related to a crime when the computer in question is employing privacy-enhancing tools, such as Tor or a virtual private network (VPN);
  • permit judges to issue warrants that would allow law enforcement to hack and seize control of computers identified as part of a botnet;
  • authorize “remote searches,” which remain undefined in the text of the changes, on computers in unknown locations; and
  • generally broaden the permissible situations under which judges may issue warrants for accessing more than one computer—possibly implicating thousands or even millions of computers not involved in criminal enterprises.  

The implications for surreptitiously violating the privacy of millions of Americans, with a single warrant, are significant with these seemingly innocuous, “procedural” changes to the rule. Without clearly articulated constraints on government hacking—a lawful systems access regime—the changes to Rule 41 could easily result in a host of negative unintended consequences for civil liberties.

A lawful systems access regime may indeed be an ideal solution to the problems faced by law enforcement in the digital age. However, such a proposal should be debated by the legislature in the public forum, not mandated by an unaccountable and obscure advisory committee to the judiciary. Until Congress decides to take up such a conversation, the proposed rule changes should not go into effect.

Along with our coalition allies, the Niskanen Center stand opposed to these changes. They constitute substantive, not merely procedural, alterations to government power and amount to a general warrant for the digital age. The American people deserve the same protections from intrusive government surveillance online as they do in the real world. The proposed changes to Rule 41 would diminish those rights in favor of granting law enforcement an all-too-easy method of intruding upon the private lives, and trampling over the civil liberties, of American citizens.

For more on Rule 41, see the coalition letter to House and Senate leadership, as well as these recent Niskanen Center posts: