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Congress floats last-chance bill to delay Rule 41 changes

Just two weeks before the deadline, U.S. lawmakers seek to postpone until next summer the acceptance of controversial updates to Rule 41, allowing legal access to unspecified systems.

United States legislators introduced a last-chance bill, dubbed the Review the Rule Act, seeking to delay pending...

changes to Rule 41 until July 1, 2017.

The changes to Rule 41 of the Federal Rules of Criminal Procedure governing search and seizure of evidence were approved by the Supreme Court earlier this year, and the latest proposed legislation is intended to provide Congress with additional time to debate Rule 41 changes before they go into effect; if Congress does not take action, the changes will go into effect on Dec. 1.

Supporters say the changes to Rule 41 have already gone through an adequate review process and will allow judges to issue warrants for searches of computers outside their own jurisdictions. They also cite law enforcement agencies' need for better tools to search for evidence on systems used for criminal activity, even when perpetrators use technological means to hide the location of those systems.

Opponents, however, point to the dangers of allowing open-ended search warrants for computers and other network-connected devices.

"This rule change would give the government unprecedented power to hack into Americans' personal devices," Sen. Ron Wyden (D-Ore.), a key opponent of the changes and co-sponsor of the Review the Rule Act, said in a statement. "This was an alarming proposition before the election. Today, Congress needs to think long and hard about whether to hand this power to James Comey and the administration of someone who openly said he wants the power to hack his political opponents the same way Russia does."

The changes to Rule 41 give magistrate judges the authority to issue warrants for computing devices located outside the judges' districts if the location of those systems has been concealed through technological means, such as the use of Tor anonymous network. The updated rule also allows warrants to be issued for searches related to computer crime investigations of systems that have been compromised or damaged and are located in five or more districts.

A spokesperson for Leslie Caldwell, assistant attorney general of the criminal division of the Department of Justice, referred to Caldwell's blog post from June, stressing the changes to Rule 41 have already gone through a lengthy, three-year public deliberation process affirming the update.

"This marks the end of a three-year deliberation process, which included extensive written comments and public testimony," Caldwell wrote. "After hearing the public's views, the federal judiciary's Advisory Committee on the Federal Rules of Criminal Procedure, which includes federal and state judges, law professors, attorneys in private practice and others in the legal community, rejected criticisms of the proposal as misinformed and approved the amendments. The amendments were then considered and unanimously approved by the Standing Committee on Rules and the Judicial Conference, and adopted by the U.S. Supreme Court."

Caldwell further noted the changes to Rule 41 do not remove Fourth Amendment protections, but are necessary to ensure investigators will be able to identify at least one court through which they can be granted lawful search warrants. She wrote: "The amendments do not change any of the traditional protections and procedures under the Fourth Amendment, such as the requirement that the government establish probable cause. Rather, the amendments would merely ensure that at least one court is available to consider whether a particular warrant application comports with the Fourth Amendment."

Wyden introduced an earlier bill, called the Stopping Mass Hacking Act, which would have prevented the changes to Rule 41 from going into effect through congressional action on the update. That bill did not garner any support from the Senate Judiciary Committee, and as a result, it did not make it to the Senate floor for a vote. However, Sen. Chris Coons (D-Del.), who is a member of that committee, sponsored the Review the Rule Act.

"The proposed changes are serious and present significant privacy concerns that warrant careful consideration and debate," Coons said in a statement. "Our bicameral, bipartisan legislation will give Congress time to do our job and carefully consider and evaluate the merits of these proposed changes to the government's ability to search personal computers and other digital devices. It is essential that these rules strike a careful balance: giving law enforcement the tools it needs to keep us safe, while also protecting Americans' constitutional rights to privacy and freedom from unreasonable searches."

Rule 41 of the Federal Rules of Criminal Procedure delineates the legal framework for search and seizure of evidence, including the authority to issue warrants that allow federal law enforcement or government attorneys to collect evidence in criminal proceedings.

In addition to Sens. Coons and Wyden, U.S. senators supporting the new bill include Steve Daines (R-Mont.), Mike Lee (R-Utah) and Al Franken (D-Minn.); U.S. representatives supporting the bill include Reps. John Conyers, Jr. (D-Mich.) and Ted Poe (R-Texas).

Next Steps

Find out more about how changes to Rule 41 could threaten the EU-U.S. Privacy Shield framework.

Read about the FBI's stance on the necessity for encryption backdoors.

Learn more about the use of cyberweapons and how they are affected by the government's vulnerability equities process.

Dig Deeper on Information security laws, investigations and ethics

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