The Wall Street Journal reports that the Department of Justice is seeking increased authority to remotely search not only computers but also cloud based services to which those computers connect. The techniques investigators use for this searching include sending an email containing code that installs spying software. At that point, investigators can take over the computer, and use any stored passwords to search cloud based back ups, file storage, email accounts, and more. The government doesn’t describe these methods as hacking, preferring instead to use terms like “remote access” and “network investigative techniques.”
The DOJ push comes in the context of proposed modifications to the Federal Rules of Criminal Procedure, specifically Rule 41 which governs how search warrants are issued. Under the current rule, magistrates may only authorize searches within their particular district. Electronic crimes may affect the district, but the suspect and data located in a different, or many different, districts.
This seemingly unremarkable logistical problem is the sharp edge of the wedge through which DOJ is seeking to validate expansion of it’s use of remote hacking techniques. Orin Kerr has participated in the rulemaking process, and writes that “if agents know that they can conduct remote searches from anywhere, they will be significantly more inclined to conduct remote searches instead of pursuing the current two options of physical searches and obtaining ECPA (Electronic Communications Privacy Act) warrants.” What that means is that the rights of suspects, and the interests of service providers, will be undermined in the following ways: “First, conducting remote searches instead of physical searches will foster a shift to delayed-notice searches. Second, conducting remote searches instead of obtaining ECPA warrants will allow the government to avoid the statutory individual-warrant standard of ECPA warrants.”
As the Journal reports, some critics of the rule change also argue that increased government reliance on such tools will disincentivize it from helping to fix software problems exploited by criminals. Indeed, the public recently learned that the NSA operates botnets to install malware and maintains a shadow Internet of hacked routers. It will be interesting to see what service providers, whose terms of service prohibit password sharing and who have reacted strongly against NSA “back door access” to their systems, will say about the DOJ’s proposal.
Unfortunately, the effort–coming through a rather obscure process–hasn’t yet gotten much public attention.