Now the Congress have until December 1 to either approve the rule, reject or make changes to it – then any magistrate judge in the country could grant the FBI warrants authorizing hacks into computers whose whereabouts are unknown.
In its letter to Congress, the Supreme Court approved the following change to Rule 41 of the Federal Rule of Criminal Procedure:
“A magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.”
Under the phrase “concealed through technological means,” the court is referring to computers whose location is hidden via the use of anonymity software such as the Tor web browser.
Currently, magistrate judges cannot issue warrants for “remote searches” to the FBI if law enforcement doesn’t know where a computer in question is physically located, since its location could potentially be outside of the court’s jurisdiction.
Not only does the new rule change that, it also could allow the FBI to gain access to computers that have been already hacked by malicious software, meaning that victims of cyberattacks could see their computers searched by the government. If a computer is suspected to be part of compromised network, that network could also be searched. If a computer is ultimately located overseas but hidden via Tor, then authorities may potentially be able to hack into it as well.
For its part, the Justice Department believes that the modified rule is necessary to keep up with criminals using the latest technology to avoid detection. If an individual is trying to hide his location, the argument goes, then search warrants should be able to bypass jurisdiction limitations.
“Criminals now have ready access to sophisticated anonymizing technologies to conceal their identity while they engage in crime over the Internet, and the use of remote searches is often the only mechanism available to law enforcement to identify and apprehend them,” DOJ spokesperson Peter Carr said in a statement to Motherboard.
“This amendment ensures that courts can be asked to review warrant applications in situations where is it currently unclear what judge has that authority. The amendment makes explicit that it does not change the traditional rules governing probable cause and notice.”