THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS AND EFFECTS… New US computer search law takes effect Thursday.
“By sitting here and doing nothing, the Senate has given consent to this expansion of government hacking and surveillance.”
Those were the words Wednesday of Sen. Ron Wyden (D-Ore.) as he failed to convince fellow senators to even hold a floor vote that could block changes to what is known as Rule 41 from taking effect Thursday.
Wyden was referencing an amended Federal Rule of Criminal Procedure, which originated from an unelected advisory committee and was signed by the Supreme Court in April. By rule, it becomes effective December 1. The measure clarifies the law allowing judges to sign warrants that let authorities hack into computers outside a judge’s jurisdiction. The rule also gives federal judges the authority to issue a warrant to search multiple computers—even without knowing who is the targeted computer owner. Previously, some judges had practiced this, while others did not.
Wyden, a handful of fellow lawmakers, and civil rights groups like the Electronic Frontier Foundation oppose Rule 41. They say that under the measure, a warrant would not have to say with any particularity whose computer the authorities are searching. Wyden said Congress should vote on whether to allow this instead of the measure taking effect without any congressional approval.
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In a recent Medium post, Wyden said: “For law enforcement to conduct a remote electronic search, they generally need to plant malware in—i.e. hack—a device. These rule changes will allow the government to search millions of computers with the warrant of a single judge. To me, that’s clearly a policy change that’s outside the scope of an ‘administrative change,’ and it is something that Congress should consider.”
The success of constitutional separation of powers was predicated on each branch being jealous of its powers and prerogatives. The Founders don’t seem to have imagined a Congress happy to give theirs away to the Executive.