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Rule 41: Getting Around the Constitution and Having It Too

You don’t have to be a rocket scientist to understand what’s wrong with the proposed federal court updates to Rule 41.

Anyone who’s even halfway following the news of the proposed updates to Rule 41 probably can’t help but be struck by the irony of the situation. It’s actually humorous, in a Vonnegutian tragicomic sort of way.

In case you haven’t been following the news, the proposed changes from the advisory committee on criminal rules for the Judicial Conference of the United States would update Rule 41 of the Federal Rules of Criminal Procedure and broadly expand law enforcement’s legal authority when it comes to hacking and surveillance. The Supreme Court has already passed the proposal to Congress, which must disavow the changes by December 1 or it becomes the governing rule for every federal court in the country.

Here’s how the Electronic Frontier Foundation explains the proposed rules change:

“The proposal would grant a judge the ability to issue a warrant to remotely access, search, seize, or copy data when ‘the district where the media or information is located has been concealed through technological means’ or when the media are on protected computers that have been ‘damaged without authorization and are located in five or more districts.’ It would grant this authority to any judge in any district where activities related to the crime may have occurred.”

This means that if you use Tor, you’re fair game. If you use a public VPN, you’re fair game. In other words, the only way you’re going to be able to safely use Tor or a VPN with assurances that the government isn’t installing dirt on your hard drive or reading your email is if you boot from a live CD or thumb drive — and then only if the boot medium isn’t persistent.

And if you live in, say China, far outside the typical jurisdiction of the U.S. and where you probably won’t be up-to-date on U.S. law? It doesn’t matter. With an easy to obtain warrant the feds can still hack you, under the reasoning, I guess, that since your location is concealed you might be on the 1600 block of Pennsylvania Avenue in the U.S. capital — and we certainly wouldn’t want that.

As I say, funny — in a Vonnegutian sort of way.

Our government encourages the use of Tor and VPNs by those living in China and other countries where people can go to prison for frequenting the wrong website and essential news and information is often officially blocked by ISPs. Now there’ll be U.S. agents waiting to drop evidence in the form of spyware on the computers of dissidents who travel through the misnamed “dark net.” Evidence that would be more than enough to get them in trouble with the authorities at home if their computers are ever examined.

This also means that anyone whose computer has been hacked and enlisted as part of a botnet is also fair game. Never mind that the hackers are already planning on eventually cleaning out the computer owner’s bank account and have already gathered enough information to open lines of credit in the owner’s name. Now the hapless victim must also contend with the NSA being all up his or her business.

Of course, the feds would like you to know that none of this will affect you, since you obviously have nothing to hide. There’s nothing to worry about.

You might want to call your congressperson about this anyway.


  1. Dave Bean Dave Bean May 4, 2016

    SAN DIEGO, June 15, 1999 /PRNewswire/: “EFF has helped pave the way for today’s explosion in MP3s and other audiovisual content on the Internet through ongoing challenges of restrictions placed on content and computer security.” EFF supported unprotected content on the Internet. Now they want to protect content. Inconsistent positions seem to confirm EFF as a tool of Silicon Valley 1% corporations. Despite protests to the contrary, Silicon Valley Corporations are deeply aligned with the Feds. This smacks of nice imaging for the public, while the corporations own the politicians and will help write the final bill. Call me cynical.

  2. Mike Mike May 4, 2016

    @Dave Bean

    > “EFF supported unprotected content on the Internet. Now they want to protect content.”

    EFF protects people’s freedom.

    That’s far different than protecting the interests of the big media conglomerates.

    It’s insane how the Feds want the smallest of transgressions online to be considered major crimes yet want to be able to do even worse to everyone else whenever they feel like it. Like they way U.S. Attorney for the District of Massachusetts Carmen Ortiz and the DOJ killed Aaron Swartz.

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