Congressional Critics Plan Hitching Legislation to Larger Bill to Delay Rule 41 Changes

"Starting today, the federal government has the power to hack millions of Americans’ computers with one single search warrant," wrote Sen. Steve Daines, R-Mont., in a Thursday post on Medium.org. "Government isn’t even required to ensure those subject to a computer search are notified. Why not give Congress the time it needs to deliberate this policy and conduct this debate in a way that is transparent to the American people?" Daines has co-sponsored both the Review the Rule Act (S-3475) and the Stopping Mass Hacking Act (S-2952) that would either delay or stop the Rule 41 amendments from going into effect. Daines along with Sens. Chris Coons, D-Del., and Ron Wyden, D-Ore., failed to get unanimous consent for those bills and a third one that would have delayed implementation for three months (see 1611300046).

Senate aides and others previously told us they hope to attach legislation to a larger bill to suspend the Rule 41 changes. Gabe Rottman, deputy director for the Center for Democracy and Technology's (CDT) Freedom, Security and Technology Project, emailed Thursday that he hasn't heard anything more specific, though it would be a good move. "I guess I’d say that the next step is definitely seek another bite at delay, but also to start monitoring the use of Rule 41, to the extent one can. Once you start seeing collateral damage to grandma’s computer, I can imagine political traction behind a fix post-implementation," he said.

It's possible that one of the trio of bills could be attached to short-term continuing resolution or other must-pass bill (see 1611290050). But Robyn Greene, policy counsel and government affairs lead for New America's Open Technology Institute (OTI), told us Thursday she doubted that would happen since leadership tries to restrict what can be attached to CR measures. The better bet, probably next Congress, is that the House and Senate Judiciary committees hold hearings on the FBI's hacking authority for the last two decades and the lack of rules overseeing such activities. She said there are more rules and procedures for wiretaps than for hacking, which is more privacy invasive. A legal framework is needed for hacking to make sure it's a "last resort," with procedures that limit what files the FBI can examine. said Greene. She said there's a lack of transparency now regarding the government's current procedures.

Majority Whip John Cornyn, R-Texas, Wednesday objected to all three unanimous consent requests for the bills, saying on the Senate floor the concerns of his three colleagues were "misplaced." The courts have the "inherent power to write their own rules of procedure, and that's what this is," said Cornyn. The Rule 41 changes have been the focus of a "lengthy" three-year deliberation with plenty of public feedback and, in the end, was endorsed by the Supreme Court, he said: That should ease people's concerns "that somehow this is an unthought-through or hasty rule that's going to have unintended consequences." Cornyn said DOJ still has to show probable cause before a judge and a "defendant can still challenge the lawfulness of the search."

In tweets Thursday, Rep. Justin Amash, R-Mich., wrote "Senate Republican leaders decided your privacy and your rights aren't important." Responding to a tweet from Cornyn, who wrote that getting a search warrant showing probable cause before "a neutral judge is not a 'hack,'" Amash wrote: "The government's new authority gives it access to the devices of millions of law-abiding individuals with a single warrant. That's hacking." Justice has said the new authority is procedural and needed to combat sophisticated cybercriminals.