by Shaun Bradley
On Thursday, December 1, a vital Supreme Court order is set to go into effect that dramatically expands the surveillance power of federal agents. The impending alteration to Rule 41 of the Federal Rules of Criminal Procedure softens the legal requirements for obtaining search and seizure warrants that grant the government remote access to individual’s computers and phones.
In the past, law enforcement was required to obtain a warrant from a judge within the jurisdiction where the proposed search was going take place. Under this new system, however, if an individual is using technology to conceal their location, the warrant is considered valid regardless of jurisdiction. A single authorization will have the potential to validate millions of searches on private devices. Any journalist, activist, or whistleblower who values privacy and uses tools like Freenet or the Tor network will fall directly into the crosshairs.
As USA Today summarized, the rule change was “sought by the Justice Department, adopted by the U.S. Federal Courts, and approved on April 28 by the Supreme Court without much fanfare.”
These changes have been on the fast track since the FBI had evidence thrown out in a recent child pornography case. The defendant was using the Tor network to conceal his IP address and operating a child pornography site known as Playpen. The Department of Justice and FBI refused to disclose the legal process used to gain access to the evidence, likely because they did not follow proper legal protocols. As a result, at least some of their evidence was rejected by the court.
The controversy was compounded by the FBI’s use of Playpen’s servers to set up a massive sting, known as Operation Pacifier. The pedophilic porn site was run directly by federal agents for over two weeks in an attempt to round up any individuals using the network.These same agencies are now claiming that without changes to the current rule, their ability to put the scum of society behind bars is severely restricted.
The dark web has been subverting the controllable marketplace for years, but through the eyes of the government, anything outside of their dominance is equivalent to insurrection. Without a doubt, anonymity online creates a double-edged sword of freedom versus lawlessness, so it’s no surprise significant action has been taken to crack down on this space under the guise of national security and public safety.
In this vein, the modification of Rule 41 has been framed as crucial in preventing crime even though implementing it grants sweeping authority to the State.
Typically, any changes that carry these broad implications are openly debated in Congress, but by classifying the move as a simple procedural change, the discussion was instead held by the small U.S. Courts Advisory Committee on the Federal Rules of Criminal Procedure following the Department of Justice’s request to modify the rule. The alteration was approved by the Supreme Court. The lack of publicity received for something so fundamental shows there has been a deliberate effort to conceal the consequences of this scheme.
The Electronic Frontier Foundation has been an outspoken advocate for maintaining the current protections. The organization has voiced its concerns about the new rule:
“The Federal Rules of Criminal Procedure set the ground rules for federal criminal prosecutions. The rules cover everything from correcting clerical errors in a judgment to which holidays a court will be closed on—all the day-to-day procedural details that come with running a judicial system. The key word here is ‘procedural.’ By law, the rules and proposals are supposed to be procedural and must not change substantive rights. But the amendment to Rule 41 isn’t procedural at all. It creates new avenues for government hacking that were never approved by Congress.”
The media has done an excellent job of demonizing the dark web and the anonymous networks that inhabit it. By focusing on stories like the Silk Road and its founder Ross Ulbricht (among others who use anonymous systems to conceal state-designated criminal activity), the media has convinced the public that anonymity and criminality are one and the same. The federal government has long held this belief; during a crackdown in 2014, the FBI targeted more than 400 Tor addresses in an attempt to identify the actual locations of anonymous servers.
Maintaining complete privacy doesn’t matter to those whose biggest worry is having their porn history made public. But it’s the underground railroad for renegades working against the establishment. Journalists who are communicating with sources or establishing an outlet for whistleblowers need a layer of protection that can encourage others to feel safe coming forward. As activism and social media continue to merge, it’s essential that the leadership of dissenting movements can coordinate action without having to worry about infiltration.
There have been multiple bipartisan actions to curtail this erosion of privacy, namely through the Stopping Mass Hacking Act and the Review the Rule Act. Well-known lawmakers who value individual liberty, like Thomas Massie and Rand Paul, have come out in full support of these counter-efforts. Twenty-three members of Congress also sent a letter to Attorney General Loretta Lynch to express concerns and ask for more information.
Senator Ron Wyden, a member of the Senate’s Intelligence Committee, is a sponsor of the Stopping Mass Hacking Act. In a last ditch effort, he called on Congress to take action in an attempt to block the rule change. Unfortunately, the motion was voted down on Wednesday morning.
“If Congress doesn’t stop these changes, a single judge will be able to grant a warrant to hack a million (or more) computers and other devices. By hacking the devices of victims of a botnet, the government will be treating victims the same way it treats attackers. We need to pass my Stopping Mass Hacking (SMH) Act right now.”
Removing these kinds of limitations on power is what, over time, leads to the complete subjugation of a society. This takes a huge step towards further neutering the 4th Amendment of the Bill of Rights, making probable cause on an individual basis a thing of the past. The desire for privacy cannot be considered suspicious in a world where almost all personal information is a matter of public record.
This ruling can easily be rationalized when framed as an effort to stop child trafficking, but the unseen effects it will have on the future of journalism and activism must be seriously examined. Contacting legislators directly may seem futile, but making their lives difficult is one of the best ways to get their attention. If those of us who are passionate about preserving individual freedom become apathetic, there will be nobody left to hold back the constant progression of invasive statism.
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