DOJ Rebuts Arguments Against Rule 41 Changes; CCIA Says Senators Seeking More Review
After talking with congressional staff, Computer & Communications Industry Association Public Policy and Regulatory Counsel Bijan Madhani told us Sens. Chris Coons, D-Del., and Ron Wyden, D-Ore., will likely seek Wednesday unanimous consent on the floor for Wyden's Stop Mass…
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Hacking Act and Coons' Review the Rule Act. Those bills would delay changes made to Rule 41 of the Federal Rules of Criminal Procedure, which are to take effect Thursday (see Ref:16112200130]). Many critics see it as expanding government hacking authority. Madhani said the "better prospect" is attaching the Review the Rule Act to an omnibus bill or a continuing resolution. CCIA, which includes members include Amazon, Facebook, Google, Microsoft, Netflix, Sprint and Yahoo, is interested in having a new administration and Congress look closely at the issue, and it's important for the new administration to figure out what authority DOJ has and doesn't have, said Madhani. The technology industry agrees with civil society groups about discussing government hacking and its potential ancillary effects for international relations and the economic security of companies and U.S., he said. Also Monday, DOJ Criminal Division Chief Leslie Caldwell dismissed the argument that procedural changes allowing the government to get search warrants more easily to fight cybercrimes using anonymizing technology aren't legitimate because they were considered by an "obscure committee," not Congress. Her blog post said the Supreme Court, which approved the rules in May, is "not typically referred to as an 'obscure committee' -- after extensive public consideration by the federal judiciary. Moreover, the amendments were proposed to and vetted by the federal judiciary pursuant to the statutory mechanism that Congress itself created for consideration of amendments to the rules of procedure." Caldwell's post is the third over the past week explaining why DOJ needs these changes to fight child exploitation, botnets and other cyber crimes. For instance, she said that searches would be done only to investigate the extent of a botnet and assist in freeing victim computers. Some techniques used by the government, she acknowledged, "could arguably involve conduct that would constitute a search or seizure under the Fourth Amendment." Caldwell said that may be question of substantive law. "It would be strange if the law forbade the searching the scene of a crime," but nothing in the amendments affect the law, she said.