Sens. Ron Wyden (D-Ore.), Steve Daines (R-Mont.) and Chris Coons (D-Del) took to the floor and unsuccessfully asked for unanimous consent to either pass or formally vote on three bills to delay or prevent updates to the process used by law enforcement to get a warrant to hack suspects’ computers.
“We simply can’t give unlimited power for unlimited hacking,” Daines argued.
But the bid to prevent the imminent changes to Rule 41 ended quickly. After Wyden spoke, Majority Whip John Cornyn (R-Texas) immediately objected to all three bills, without waiting to hear from Coons and Daines.
But Cornyn alone can’t be blamed for this outcome. A vast majority of senators did nothing to prevent the proposed changes from becoming law — even though the decision has been in their hands since the Supreme Court’s approval in April.
The FBI and others will be able to take advantage of the removal of jurisdictional limits to search computers anywhere in the world using a single warrant issued by a magistrate judge. It will also be granted the same power for use in the disruption of botnets — in essence, searches/seizures of devices owned by US citizens suspected of no wrongdoing.
Cornyn, who prevented any debate over the “updates” to Rule 41, seems closely aligned with the DOJ’s views — that these changes will have “little effect” on civil liberties because the FBI, etc. “will still have to get a warrant.”
Sure, warrants are still involved, but the scope of what can be accessed with a single warrant has been expanded greatly. And the DOJ has yet to explain how it’s going to prevent law enforcement agencies from shopping around for the most compliant magistrates, now that they’re not required to perform searches in the issuing court’s jurisdiction. The DOJ also hasn’t adequately explained what sort of notification process it will use when performing its botnet cleanups.
What it has done, however, is issue a statement saying the ends justify the means.
In an effort to address concerns, U.S. Assistant Attorney General Leslie Caldwell wrote a blog post this week arguing that the benefits given to authorities from the rule changes outweighed any potential for “unintended harm.”
The DOJ wanted fewer restrictions, more power, and the opportunity to treat any appearance of anonymization software as an excuse to deploy these newly-granted powers. The Senate — for the most part — gave it everything it wanted by doing nothing at all to stop it.