Analysis by Kyle A. Lohmeier
So, last week, congress allowed a new, wide-reaching digital surveillance rule, so-called “Rule-41,” to go into effect. Rationalized as a way to help the FBI and other law-enforcement entities solve cyber-crimes where physical jurisdiction is hard to establish, the law now allows any one judge to issue a blanket search warrant for any one computer anywhere in the country. The law also allows law enforcement to find said computer by hacking into as many other computers as needed until they find the one they’re looking for.
“Congress is allowing this rule to go into effect without actually having the debate about whether we should, in the computer context, be allowing law enforcement to search every house in the neighborhood with the use of one warrant to find a bad guy,” said Gabe Rottman, Deputy Director of the Center for Democracy And Technology, as quoted in a piece by Josh Helmuth on KSHB’s website.
Rottman also said there was no consideration given for the damage government “spybots” might do to the computers that are hacked into in the ham-fisted search for a bad guy.
Of course, the ever-inept and utterly corrupt FBI Director James Comey loves his new powers.
“In complex computer crime cases, given the nature of the dark web for example and given the nature of huge bot nets, it is problematic for some of our most important investigations. If we have to go to dozens of different magistrate judges in a bot net case, or if we’re unable to go to a magistrate judge ’cause we can’t say for sure where the computer is. Even if we have probable cause to believe that computer is involved in serious criminal activity. It’s to solve that problem where the legal age has made physical location, a less of a determinant than it is in the pre-digital age.” Comey said back in May, as he’s lacked the guts to defend this annihilation of the Fourth Amendment any more recently than that.
So, to translate that word salad into English: because any computer anywhere on Earth can theoretically talk to any other computer on Earth, having to find magistrates with physical jurisdiction over the location where the computer to be searched is, becomes problematic. I can understand that. What Comey utterly fails to even attempt to make a case for is the fact Rule 41 deals with this issue of physical jurisdiction by removing all Fourth Amendment protections from everyone. Removing the hassle of physical jurisdiction is one thing, removing the hassle of having to do actual police work, and do it constitutionally, to solve a crime, is quite another.
There were no cars or Interstate highways when the Bill of Rights was written. There were no trains or jumbo jet airliners either. People moved across the earth slowly, and information couldn’t travel any faster than a carrier pigeon or a man on horseback could. Yet, when the coming decades made it easier for fugitives to travel great distances quickly, no consideration was given to crushing Fourth Amendment rights to allow law enforcement to search whole towns to find one guy who may have passed through the area the day before. Yet, Rule 41 gives government exactly this power over our computers; something I’m pretty sure the founders would have considered an “effect,” as mentioned in the Fourth Amendment.
Also, when the Fourth Amendment was written, the only things that were crimes were actions that actually victimized someone else as long as they weren’t black. The sorts of “crimes” the FBI now has unlimited extra-constitutional power to fight are often drug crimes. Yes, theft, human trafficking and child pornography are also things associated with the “deep web” but there’s little reason to believe federal law-enforcement is even capable of dealing with those effectively.
That above conclusion is largely based on my long experience in watching the federal government suck at everything it does, and partly based on the occasional instances that seem to confirm my prejudice; like the recent news out of Accra, Ghana, where the federal government of the United States operates an official embassy. In the same town, unbeknownst to the U.S. Consulate or to any of our myriad intelligence services, a fake embassy run by Turkish and Ghanaian gangsters operated for ten years. The orange-walled building, suffering from water damage and surrounded by a buckled sidewalk, had a photo of Barack Obama on the wall, and therefore seemed legit enough, apparently. There, using expired passports as a blueprint, and illegally-obtained blank documents, the “embassy staff” issued bogus U.S. Passports for a decade; totally unnoticed by U.S. Law-enforcement. That same U.S. Government says “no one is believed to have entered the United States with one of the fake visas.”
That same, useless, bungling government now has the power to hack your computer, laptop, tablet or mobile without you even knowing, and search through it; just in case you’re the highly sophisticated cyber criminal they’re looking for. However, if you’re charging people up to $6,000 for dodgy forgeries of official U.S. Documents that grant the holder legal entry into the physical realm known as the United States of America, it appears you can operate for a decade without even being noticed. Of course, cyber-criminals have a lot of neat stuff to take as “asset forfeiture,” the Turkish and Ghanaian gangsters in their fake embassy, apparently did not.
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