Google Calls FBI's Plan to Expand Hacking Power a 'Monumental' Constitutional Threat
Google Calls FBI's Plan to Expand Hacking Power a
'Monumental' Constitutional Threat
Any change in accessing computer data should go through
Congress, the search giant said.
By Dustin Volz
February 18, 2015 Google is warning that the government's
quiet plan to expand the FBI's authority to remotely access computer files
amounts to a "monumental" constitutional concern.
The search giant submitted public comments earlier this
week opposing a Justice Department proposal that would grant judges more leeway
in how they can approve search warrants for electronic data.
The push to change an arcane federal rule "raises a
number of monumental and highly complex constitutional, legal, and geopolitical
concerns that should be left to Congress to decide," wrote Richard
Salgado, Google's director for law enforcement and information security.
The provision, known as Rule 41 of the federal rules of
criminal procedure, generally permits judges to grant search warrants only
within the bounds of their judicial district. Last year, the Justice Department
petitioned a judicial advisory committee to amend the rule to allow judges to
approve warrants outside their jurisdictions or in cases where authorities are
unsure where a computer is located.
Google, in its comments, blasted the desired rule change
as overly vague, saying the proposal could authorize remote searches on the
data of millions of Americans simultaneously—particularly those who share a
network or router—and cautioned it rested on shaky legal footing.
"The serious and complex constitutional concerns
implicated by the proposed amendment are numerous and, because of the nature of
Fourth Amendment case law development, are unlikely to be addressed by courts
in a timely fashion," Salgado wrote.
The Justice Department has countered that the rule change
amounts to a small-scale tweak of protocol, one that is necessary to align
search-warrant procedures with the realities of modern technology. In its own
comments, the Justice Department accused some opponents of the rule change of
"misreading the text of the proposal or misunderstanding current
law."
"The proposal would not authorize the government to
undertake any search or seizure or use any remote search technique not already
permitted under current law," Deputy Assistant Attorney General David
Bitkower said in a memorandum written late last year and made public Tuesday.
He added that investigators are "careful to avoid collateral damage when
executing remote searches, just as [they are] careful to avoid injury to
persons or damage to property in the far more common scenario of executing
physical warrants."
Google is the only major tech firm to weigh in on the
little-noticed proposed rule change, for which the public comment period ended
on Tuesday. Privacy and civil-liberties groups, such as the American Civil
Liberties Union, and some technology experts have also condemned the plan as a
potential threat to the Fourth Amendment's protection against unreasonable
government search and seizures.
A change this broad should only be enacted by Congress,
they argue.
"I empathize that it is very hard to get a
legislative change," Amie Stepanovich, senior policy counsel with Access,
a digital-freedom group, told the judicial panel during a meeting called to
review the proposal in November. "However, when you have us resorting to
Congress to get increased privacy protections, we would also like to see the
government turn to Congress to get increased surveillance authority."
Google echoed that concern in its comments, saying the
panel should "leave the expansion of the government's investigative and
technological tools, if any are necessary or appropriate, to Congress."
The rules committee is expected to render a decision on
Rule 41 in the coming months, though the amendment faces several additional
hurdles before it can be adopted. That process includes a review by the Supreme
Court and, finally, Congress, which would have seven months to act on the
proposal. Failure to enact legislation to "reject, modify, or defer the
rules," however, would result in them automatically taking effect,
according to policies that govern U.S. courts.
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