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U.S. Lawmakers Raise Privacy Concerns Over New Hacking Rules

October 28, 2016, 12:40 PM UTC
Apple Supporters Protest In Front Of FBI Headquarters In Washington DC
WASHINGTON, DC - FEBRUARY 23: The official seal of the Federal Bureau of Investigation is seen on an iPhone's camera screen outside the J. Edgar Hoover headquarters February 23, 2016 in Washington, DC. Last week a federal judge ordered Apple to write software that would allow law enforcement agencies investigating the December 2, 2015 terrorist attack in San Bernardino, California, to hack into one of the attacker's iPhone. Apple is fighting the order, saying it would create a way for hackers, foreign governments, and other nefarious groups to invade its customers' privacy. (Photo by Chip Somodevilla/Getty Images)
Chip Somodevilla—Getty Images

A bipartisan group of lawmakers in the U.S. Congress on Thursday asked the Justice Department to clarify how a looming rule change to the government’s hacking powers could impact privacy rights of innocent Americans.

The change, due to take place on Dec. 1, would let judges issue search warrants for remote access to computers located in any jurisdiction, potentially including foreign countries. Magistrate judges can normally only order searches within the jurisdiction of their court, which is typically limited to a few counties.

“We are concerned about the full scope of the new authority that would be provided to the Department of Justice,” 23 senators and representatives wrote to Attorney General Loretta Lynch.

The Supreme Court in April approved amendments to Rule 41 of the federal rules of criminal procedure that would allow judges to issue warrants in cases when a suspect uses anonymizing technology to conceal the location of his or her computer or for an investigation into a network of hacked or infected computers, such as a botnet.

Those amendments will take effect on Dec. 1 unless Congress passes legislation that would reject, amend or postpone the changes. Some lawmakers, led by Democratic Senator Ron Wyden of Oregon, have introduced legislation that would halt the revisions, but it has yet to gain much traction.

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In their letter, the lawmakers asked how the government would prevent under the expanded rule so-called “forum shopping,” where prosecutors seek warrants in districts considered more favorable to law enforcement.

They also asked how the Justice Department intends to notify users when electronic devices have been searched and whether law enforcement has the authority to disable malicious software on a protected device, including those belonging to innocent Americans, among other questions.

The Justice Department has worked on Rule 41 changes for years, arguing they are procedural in nature and necessary to keep pace with criminal threats posed by evolving technology.

What’s more important: privacy or national security?

Civil liberties groups and some technology companies, including Alphabet’s Google, have said the changes could allow for searches that run afoul of privacy rights.

The Justice Department is reviewing the lawmakers’ letter, which asked for a response within two weeks, spokesman Peter Carr said.