WASHINGTON — Congress had six months to debate granting President-elect Donald Trump’s FBI new legal powers to hack millions of computers, and Republican leaders objected to doing so on Wednesday.
That means that starting Thursday, a Department of Justice official will be able to go to a single judge, assert that a computer crime may involve millions of networked devices, and get a warrant that lets the FBI hack all of those devices.
According to three senators who tried to put the brakes on that new authority Wednesday so Congress could at least discuss it, there are no concrete assurances from law enforcement officials that privacy won’t be violated or that devices won’t be damaged. Nor was there any explanation of how authorities will hack Americans’ wired equipment.
“At midnight tonight, this Senate will make one of the biggest mistakes in surveillance policy in years and years,” said Sen. Ron Wyden (D-Ore.), who tried with Sens. Chris Coons (D-Del.) and Steve Daines (R-Mont.) to offer three measures to delay or rein in the new FBI powers. “Without a single congressional hearing, without a shred of meaningful public input, without any opportunity for senators to ask their questions in a public forum, one judge with one warrant would be able to authorize the hacking of thousands, possibly
millions of devices, cell phones and tablets.”
In fact, very few Americans have any idea that the scope of online search warrants is about to get much broader. The push for the expansion stems from a case in Texas in which investigators were denied a warrant because they could not show that the computer they wanted to hack was in the federal district where the warrant was sought.
That prompted a long review by court officials of what’s known as Rule 41, a part of federal criminal procedure that defines search and seizure rules. They ultimately sent a proposal to the Supreme Court to expand the scope of the surveillance powers. The high court approved the expansion, and by law, Congress had six months to review and approve the change. The six months expire Dec. 1.
When Wyden and the two other senators asked for unanimous consent to bring up various measures to modify the new rules or just delay them for six more months, Sen. John Cornyn (R-Texas) objected.
He said the changes were common-sense steps designed to allow law enforcement officials the ability to pursue new threats in the rapidly changing online world.
“There is a challenge when cybercriminals use the internet and social media to prey on innocent children, to traffic in human beings, to buy and sell drugs,” Cornyn said. “There has to be a way for law enforcement, for the federal government, to get a search warrant approved by a judge based on a showing of probable cause to be able to get that evidence so that the law can be enforced and these cybercriminals can be prosecuted.”
Wyden and the others do not dispute that criminals exploit all sorts of online devices ― from cameras to computers and connected appliances ― to commit crimes in ever-evolving ways.
But Wyden argued that the new powers are far too vague, and there are inadequate protections for innocent Americans whose property could be hacked legally by the feds if officials assert it is “damaged” by malware of some sort that may have been used in a crime.
He raised the specter of a mass FBI hack going wrong, and perhaps further damaging victims of a criminal hack, or even knocking vital systems offline, such as hospital computer networks.
“Legislators and the public know next to nothing about how the government
conducts the searches,” Wyden said. “The government itself is planning to use software that has not been properly vetted by outside security experts.”
The Oregon senator and a couple of dozen others have written to the Department of Justice about those and other concerns, but did not find the answers persuasive. (Read the exchanges here.)
Wyden predicted that when something inevitably goes wrong, the anger will be aimed a lawmakers who couldn’t be bothered to add checks on the new powers.
“I think when Americans find out that the Congress allowed the Justice Department to just wave its arms in the air and grant itself new powers under the Fourth Amendment without the Senate even being part of a single hearing, I think law-abiding Americans are going to ask, ‘So what were you people in the Senate thinking?’” Wyden said. “What were you thinking about when the FBI starts hacking the victims of a hack, or when a mass hack goes awry and breaks their device, or an entire hospital system in effect has great damage done?”
Congress could still write legislation to address the new surveillance and hacking powers. But starting in January, the GOP-led Congress would in effect be challenging its own party’s president.
And Wyden argued that Trump does not have a strong record advocating for citizens’ protection from government intrusion.
“I was concerned about this before the election, but we know now that the
administration ― it’s a new administration that will be led by the individual who said he wanted the power to hack his political opponents the same way Russia does,” Wyden said.