Access Now endorses legislation to delay implementing Rule 41

Washington D.C. — Access Now today welcomes the “Review the Rule Act,” legislation to delay implementing changes to Rule 41 of the U.S. Federal Rules of Criminal Procedure to give Congress time to fully consider the impact of the changes. The changes to Rule 41 will expand the FBI’s hacking operations: they enable the FBI to hack into computers regardless of where they are located and to hack into potentially millions of computers belonging to the victims of “botnet” operations.

“We thank Senator Coons for introducing legislation to create the space for Congress to fully consider government hacking and how the changes to Rule 41 would implicate personal privacy and digital security. This is a crucial issue that deserves careful consideration. Senator Coons’ bill is a common-sense approach to give busy senators and members of Congress time to consider a significant change before it is implemented,” said Nathan White, Senior Legislative Manager at Access Now.

The Federal Rules of Criminal Procedure are procedural rules that govern the implementation of criminal law. Updates to the rules are not supposed to grant or restrict rights, nor have any other substantive impact. However, the changes to Rule 41 would implicitly bless government hacking in the United States, an activity that Congress has never explicitly authorized. Additionally, the rule changes increase magistrate judges’ authority to issue warrants in an investigation under the Computer Fraud and Abuse Act. This allows the FBI to secretly hack into and search the devices of innocent individuals, without their knowledge or consent, if the devices have been potentially infected by a botnet. Not only do the changes encourage forum shopping, but they also allow a single warrant issued by a single judge of the government’s choosing to potentially impact the privacy and security of millions of people globally.

“Government hacking poses wide-ranging threats to our rights and our digital security. Congress needs to slow down and think twice before letting the FBI go full steam ahead with untested and potentially dangerous new authorities. We need public debate and meaningful safeguards for any hacking powers, and this bill gives members of Congress the time to make an informed decision about what those safeguards should be,” said Amie Stepanovich, U.S. Policy Manager at Access Now.