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.

A sign is posted on the exterior of Google headquarters on January 30, 2014 in Mountain View, California.  
National Journal
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Dustin Volz
Feb. 18, 2015, 6:27 a.m.

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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