Supreme Court OKs DOJ 'Rule 41' Revision Proposal on Hacking Rule, Sends to Congress

Court approved the Rule 41 revision as part of a larger set of proposed changes to the criminal procedures rules. Rule 41 currently severely limits federal judges' ability to issue search warrants outside their court districts. Congress has until Dec. 1 to consider the Supreme Court-endorsed Rule 41 revision proposal, at which point the rule change will automatically go into effect, said Chief Justice John Roberts in the order. Both AccessNow and New America’s Open Technology Institute separately urged Congress to block the DOJ proposal. Sen. Ron Wyden, D-Ore., vowed in late March to work to block DOJ’s Rule 41 proposal (see 1603310062). “Instead of directly asking Congress for authorization to break into computers, [DOJ] is now trying to quietly circumvent the legislative process by pushing for a change in court rules, pretending that its government hacking proposal is a mere procedural formality rather than the massive change to the law that it really is,” OTI Director Kevin Bankston said in a news release. “Congress shouldn't let [DOJ] and an obscure judicial rules committee write substantive law, especially on a novel and complex issue with serious privacy, security, and civil liberties implications.” Congress should consider approving the Rule 41 revision proposal only after putting “strong protective rules in place, and after deep investigation and robust debate,” Bankston said. “Rather than leading public policy Congress is stuck in a Groundhog Day loop: debating the same issues over encryption for decades as technology, and the FBI’s use of it, marches on,” Access Now Senior Legislative Manager Nathan White said in a news release. “The FBI is spending millions to hack into our private digital devices. This should be a wake up call. We need a public conversation about what law enforcement is doing. We need safeguards and rules based on public input.”