A bipartisan group of lawmakers is drafting legislation to block a new Obama administration rule that would allow the government to hack into the devices of any American on the permission of a single judge without the need for any evidence of wrongdoing.
At issue is Rule 41 (b)(6)(B) of the Federal Rules of Criminal Procedure, which spells out the protocol the federal government must follow to obtain information from American citizens. Sen. Mike Lee, R-Utah, says the proposed language is a major departure from the current policy.
“Right now, as it stands without this change, the government has a requirement that it must apply for a single warrant and that it has to be in the same judicial district where this search will take place,” said Lee.
“But under the amended version of Rule 41 (b)(6)(B), if that takes effect, this deliberate and focused process would be scrapped and it would be scrapped in favor of a nationwide warrant to search millions of devices anywhere across the country,” said Lee.
The senator says under the proposed rule change the Obama administration just needs one judge in the U.S. to hack your phone or computer.
“The impact of Rule 41 (b)(6)(B) would be to allow a single judge to issue a nationwide warrant empowering the federal government to hack into any computer that people in the government believe may be part of a botnet,” said Lee.
A botnet is a group of private computers infected with malicious software. Once infected, that network of devices is used without the knowledge of those computers’ owners to send spam and engage in other nefarious activities.
Lee says the desire to crack down on botnets is understandable, but not at the expense of constitutional rights. In April, the Supreme Court quietly approved the proposed rule change, but Lee says there’s a reason why we have three branches of government.
“Regardless of whether the Supreme Court is likely to strike down this or that law, what do we think about it? Is this consistent with our own standards of what we think the federal government ought to be authorized to do. We ought to undertake an examination of each of these policy decisions with our own view of the fourth amendment in mind,” said Lee.
The fourth amendment to the Constitution says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Lee believes the Constitution is very clear on this proposed rule change.
“Yes, this offends my own view of privacy as protected by the fourth amendment,” said Lee.
In fact, he thinks this effort to skirt the fourth amendment ought to remind us of why we have it in the first place.
“When there’s blanket permission, it starts to look like the kind of thing that happened under the reign of King George III (prior to the American Revolution) on both sides of the Atlantic. The government would use what they call general warrants, a warrant basically saying, ‘Go get the bad guys. You can search anything you want,'” said Lee.
Lee expects a strong bipartisan effort in Congress to push back against the Obama administration. Sen. Ron Wyden, D-Oregon, is taking a major role in this effort, as is the top Democrat on the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vermont. Even the ACLU is opposed to the rule change.
But the clock is ticking for Lee and his allies.
“The House and Senate must pass resolutions of disapproval prior to Dec. 1 to prevent this from going into effect. We’ve got Democrats and Republicans in the Senate and Democrats and Republicans in the House who support that. Now, not every Democrat and not every Republican shares that view but many of us do. That’s why we’re getting the word out now,” said Lee.
They must not only get the resolutions passed but also be ready for an Obama veto. Overriding that veto would require two-thirds majorities in both chambers. Lee has not begun any sort of formal head count, calling it “unnecessary” and “counter-productive” when the effort to educate the public is just beginning.He says public pressure on members of Congress could be the difference between winning and losing.
“We need everyone who hears about this proposed rule change to Rule 41 (b)(6)(B) of the Federal Rules of Criminal Procedure to reach out to their senators and their congressmen and tell them how they feel about this,” said Lee.
A more urgent deadline looms on Friday, September 30. That’s when the U.S. is scheduled to cede control of the Internet Corporation for Assigned Names and Numbers, or ICANN.
“Normally, as a constitutional conservative, I’d be elated to have the government relinquishing control of something. The only problem here is in this case we’re not relinquishing it to the American people. We’d be relinquishing it, potentially, to despotic governments throughout the world, government’s run by people who might have very different ideas about the internet and censorship,” said Lee.
He says the lack of specifics on what comes next with ICANN is the most unnerving part.
“We need to wait and make sure that ICANN remains under government control until we know who’s going to be running it and how it’s going to be organized, what kinds of things foreign governments would and would not be able to do to censor and impose artificial restrictions on the internet,” said Lee.
He says internet domain control falling into the wrong hands would not only chill the free flow of information but also endanger other key liberties.
“You could also end up seeing a lot of intellectual property rights diminished or even eliminated by the wholesale assignment of a domain name belonging to one person or one company over to another,” said Lee.
With just three days left top fight this issue, Lee and his allies are hoping to jam a provision into must-pass legislation.
“We need something attached to the spending bill that needs to be passed between now and Friday to contain some type of limitation, some type of language limiting the Obama administration’s ability to relinquish control of ICANN,” said Lee.
