The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S3032-S3033 on May 19, 2016.
The publication is reproduced in full below:
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. WYDEN (for himself, Mr. Paul, Ms. Baldwin, Mr. Daines, and
Mr. Tester):
S. 2952. A bill to prevent the proposed amendments to rule 41 of the Federal Rules of Criminal Procedure from taking effect; to the Committee on the Judiciary.
Mr. WYDEN. Mr. President, today I, along with my colleague Senator Paul from Kentucky, Senator Baldwin from Wisconsin, and Senators Daines and Tester from Montana, am introducing the Stopping Mass Hacking Act, S. 2952, a bill to protect millions of law-abiding Americans from Government hacking.
On April 28, 2016, at the request of the Department of Justice, the U.S. Federal Courts recommended administrative changes to Rule 41 of the Federal Rules of Criminal Procedure, the rule that governs search and seizure procedure. The changes have been approved by the Supreme Court, and pursuant to the Rules Enabling Act the amendments take effect on December 1, 2016, absent Congressional action. Despite the seriousness of the changes, Congress has not spoken on the subject. It should. Making changes like this simply by administrative fiat is not good enough. So, today, Senator Paul and I introduce this bill.
The administrative changes will provide a magistrate judge with the authority to issue a warrant for remote electronic searches of devices located anywhere in the world when law enforcement does not know the location of the device. While it may be appropriate to address the issue of allowing a remote electronic search for a device at an unknown location, Congress needs to consider what protections must be in place to protect Americans' digital security and privacy. This is a new and uncertain area of law, so there needs to be full and careful debate.
The second part of the change to Rule 41 gives a magistrate judge the authority to issue a single warrant that would authorize the search of a large number--potentially thousands or millions--of devices that can cover any number of searches in any jurisdiction. These changes would dramatically expand the government's hacking and surveillance authority. The American public should understand that these changes will not just affect criminals: computer security experts and civil liberties advocates say the amendments would also dramatically expand the government's ability to hack the electronic devices of law-abiding Americans if their devices were affected by a computer attack.
Finally, these changes to Rule 41 would also give some types of electronic searches different, weaker notification requirements than physical searches. This raises the possibility of the FBI hacking into a person's computer after they are the victim of a cyber attack and not telling them about it until afterward, if at all. Under this new rule, they are only required to make ``reasonable efforts'' to notify people that their computers were searched. You can see how that might be problematic. It could lead to circumstances in which law-abiding Americans are not told that the government has secretly hacked into their computer.
These changes are a major policy shift that will impact Americans' digital security, the government's surveillance powers and the Fourth Amendment. Part of the problem is the simple fact that both the American public and security experts know so little about how the government goes about hacking a computer to search it. If a victim's Fourth Amendment rights are violated, it might not be readily apparent because of the highly technical nature of the methods used to execute the warrant.
As a body of elected representatives, it is Congress's job to make sure we do not let the Executive Branch run roughshod over our constituents' rights. That is why action is so important: this is a policy question that should be debated by Congress. Although the Department of Justice has tried to describe this rule change as simply a matter of judicial venue, sometimes a difference in scale really is a difference in kind. By allowing so many searches with the order of just a single judge, Congress's failure to act on this issue would be a disaster for law-abiding Americans. When the public realizes what is at stake, I think there is going to be a massive outcry: Americans will look at Congress and say, ``What were you thinking?''
I am here today, introducing this legislation, to sound an alarm. This rule change would could have a massive impact on Americans' digital security and privacy, and I plan on spending the next seven months making sure my colleagues fully understand the huge ramifications of inaction.
I thank my colleague Senator Paul for his efforts on this bill, and I hope the Judiciary Committee will consider our proposal quickly.
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