Access Now supports legislation to block changes to Rule 41

Washington D.C. — Access Now today announced support for S. 2952, Stopping Mass Hacking Act (SMH Act). The SMH Act will block implementation of changes to Rule 41 of the U.S. Federal Rules of Criminal Procedure that would expand the FBI’s hacking operations. The changes to Rule 41 enable the FBI to hack into computers regardless of where they are located and to hack into the computers belonging to the victims of “botnet” operations. SMH is “internet slang” which means “Shaking My Head” implying disappointment and disbelief.

“We applaud Senator Wyden for taking a leadership role on this technical and complicated issue. Instead of taking the easy path, Senator Wyden has chosen to demand that Congress do its job. We look forward to continued discussions as more members of the House and Senate educate themselves about this change and learn about its overbroad effects,” said Nathan White, Senior Legislative Manager at Access Now.

The Federal Rules of Criminal Procedure, as the name suggests, are procedural rules that govern the implementation of the law. Updates to the rules are not supposed to have substantive impact, or either grant or restrict rights. However, the changes to Rule 41 would explicitly bless government hacking in the United States, an activity that Congress has never authorized. Additionally, the rule changes grant magistrate judges the authority to issue warrants within an investigation under the Computer Fraud and Abuse Act, allowing the FBI to secretly search the computers of innocent individuals who have, without their knowledge or consent, been potentially infected by a botnet.

“In seeking to amend Rule 41, the FBI has sought to broadly expand its hacking authority in contravention of the system of separation of powers that underpin the U.S. government. Members of Congress must shake their heads ‘no’ and block this change until we can have an honest conversation about the nature and impact of government hacking, something that we have far too little public information about,” said Amie Stepanovich, U.S. Policy Manager at Access Now.

The SMH Act is cosponsored by by Senators Rand Paul (R-KY), Tammy Baldwin (D-WI,) Steve Daines (R-MT), and Jon Tester (D-MT).