The Department of Justice is pushing an obscure regulatory committee to pass a rule change that will greatly increase the FBI’s surveillance capabilities. The change is theoretically aimed at making it easier for investigators to hack into the electronic devices of suspects who hide their location and maintain anonymity online. In practice, civil liberty advocates argue the change could potentially lead to the FBI being able to spy on millions of electronic devices around the world.
The FBI method of hacking is broadly referred to as “Network Investigative Techniques.” It gives investigators full remote access and control of targeted computers without the owner’s permission. This means that once the FBI gets its warrant, it not only has full access to a suspect’s data, but it also has ability to install software, upload files, and even spy on suspects using their computers’ cameras and microphone.
The new rules, which will be considered by the obscure Advisory Committee on Criminal Rules, are very vaguely worded, and so would greatly reduce the requirements necessary to justify a hacking warrant. If the change passes, it would exponentially broaden the scope of people that can be legally targeted by digital surveillance by hundreds of millions, Joseph Hall, the chief technologist at the Center for Democracy and Technology told ThinkProgress. Hall, who will be testifying at a hearing of the committee on Nov. 5, said the rule change would give the FBI a “massive amount of surveillance capability”, essentially giving the agency a “license to hack.”
Specifically, the rule change stipulates that hacking warrants can be issued when the physical location of the device in question is “concealed through technological means” and also when devices show “intentional damage.” According to Hall, these categories apply to a large number of computers and cell phones around the world, and are by no means consistent indicators of criminal activity. Misreporting your location on Facebook, for example, can be interpreted as “technologically concealing your location” and therefore would enable the FBI to get a warrant allowing it to hack into your laptop under the proposed rules. The same goes for the use of commonly used technologies like VPNs. The “intentional damage” requirement is equally broad and can refer to any device infected with some type of virus or malware. In other words: millions of computers and phones.
Additionally, under the new rules, the hacking warrant does not need to come from the district where the investigation is taking place, as the current rules stipulate. If the change goes through, a magistrate in Colorado, for instance, will be able to grant a warrant for the hacking of a device in New York. Civil liberty advocates argue this will lead to “shopping,” meaning investigators will simply acquire warrants from districts that are more likely to give them.
The broadness of the proposed amendment doesn’t even limit the jurisdiction of magistrates to the United States. In fact, the rule change has massive implications for international surveillance. Although the FBI claims it does not intend to use the new rule to hack into devices abroad, there is nothing in the language to stop them from doing so. By virtue of the fact that the “location concealment” clause of the amendment implies that investigators do not know where the device is located, warrants will be given for the access to devices that could potentially be halfway around the world. If it passes, the amendment will result in “possibly the broadest expansion of extraterritorial surveillance power since the FBI’s inception,” according to Ahmed Ghappour, an expert in computer law at University of California, Hastings, who will also be addressing the hearing on Nov. 5.
These developments are part of a greater trend towards increased surveillance in the U.S. Just last week, for example, the New York Times reported that the U.S. Postal Service approved nearly 50,000 requests for mail tracking by law enforcement agencies. Even more alarming is that these new surveillance techniques are for the most part being put in place without debate or the consent of Congress. The FBI’s proposed rule change marks the latest step in this trend, and a very significant step at that. In a country where some government agencies have near-unrestrained spying power, it seems the FBI does not want to fall behind.