DOJ Seeks Removal Of Restrictions On Computer Search Warrants - 0 views
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The Justice Department recently submitted proposed new rules on the procedures and practices of the department’s agencies and bureaus. Among the suggested changes is a modification of the Federal Rules of Criminal Procedure Rule 41(b), which empowers a federal court to issue a warrant allowing the federal government to conduct a search of a computer or computer network involved in a criminal investigation. Under current regulations, a warrant issued by a federal court is only valid in that court’s district. As there are 94 federal judicial districts, investigating a widespread attack may require either petitioning dozens of district courts or acting extrajudicially by not seeking a warrant. An extrajudicial investigation, however, cannot be used if criminal convictions are sought, as evidence gathered in this manner is not typically admissible in court. The Justice Department is seeking to make remote access warrants to search, seize and copy electronic information valid for all federal districts.
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The Justice Department argues that due to the sophistication of cyber-criminals, an offending computer or computer cluster can sit in a district separate from the district where the hackers that infected the target computer anonymously are and separate from the investigators’ district. “Criminals are using multiple computers in many districts simultaneously as part of complex criminal schemes, and effectively investigating and disrupting these schemes often requires remote access to Internet-connected computers in many different districts,” wrote then-acting Assistant Attorney General Mythili Raman in a September letter to the Advisory Committee on the Criminal Rules. “Botnets are a significant threat to the public: they are used to conduct large-scale denial of service attacks, steal personal and financial data, and distribute malware designed to invade the privacy of users of the host computers,” Raman continued. In the letter, Raman cited an investigation of a child porn site that uses The Onion Router Network, or Tor, to anonymize its traffic. The Justice Department argues that it knows the site’s hosting server location, but without a warrant local to the server, the department is prevented from retrieving the server’s user records — including IP and MAC addresses. In most cases, however, law enforcement do not know the physical location of the site’s server, making it impossible to request a specific warrant.
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In these cases, the Justice Department could request a blanket warrant. This would allow the department to set up a “zero-day” attack on the server — an attack exploiting a manufacturer-unknown or -permitted security flaw, allowing access to the system’s operating software. However, a Texas judge denied the FBI access to such a warrant, saying the Justice Department’s use of “zero-day” attacks in its investigation exposes the public and the target to unknown risks. One typical type of a “zero-day” attack is an infected email that could affect a large number of innocent people if the target used a public computer to access his email. The FBI planned to install a Remote Administration Tool, or RAT, which would distribute such emails in a partially-targeted spam mail distribution. Last year, Federal Magistrate Judge Stephen Smith of the Houston Division of the Southern District of Texas ruled that this was a gross overreach of investigatory intrusion, blocking the plan temporarily. A “zero-day” attack has the potential to activate and control the targeted computer’s peripherals, such as webcams and microphones.
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The proposed rule change is at pp. 499-501 here. http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Standing/ST2014-05.pdf#page499 (very large PDF). This is not just about the government being granted permission to exploit vulnerabilities unknown to the computer owner; the issue arose in a case where the government sought judicial permission to implant a Trojan Horse in a suspect's computer. Moreover, the proposed rule goes far beyond the confines of that case, purporting to authorize the government to skip merrily along searching computers not specified in the warrant, along the purported botnet. To put the icing on the cake, the government wants to be relieved from the requirement that they apply for a warrant in the district in which the computer to be searched is located. ("Oh, Goody! Let's start shopping around for the judges we like instead of the ones we are now required to persuade. What? The Mississippi judge refused to sign the warrant? Oh well, let's try it with that other judge we like, the one in Gnome, Alaska.") In other words, what the government seeks is authority for "general warrants," the very evil that the 4th Amendment was designed to outlaw. Even more outrageously, the proposed rule provides in part: "For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant on the person whose property *was* searched or whose information *was* seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person." Not the use of the past tense "was." So after they have drained your computer of all its data, they may permissibly install a batch file that will display a copy of the warrant on your monitor the next time you boot your computer. With a big red lipstick imprint of a kiss imprinted in the warrant's bottom margin, no doubt
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The proposed rule change is at pp. 499-501 here. http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Standing/ST2014-05.pdf#page499 (very large PDF). This is not just about the government being granted permission to exploit vulnerabilities unknown to the computer owner; the issue arose in a case where the government sought judicial permission to implant a Trojan Horse in a suspect's computer. Moreover, the proposed rule goes far beyond the confines of that case, purporting to authorize the government to skip merrily along searching computers not specified in the warrant, along the purported botnet. To put the icing on the cake, the government wants to be relieved from the requirement that they apply for a warrant in the district in which the computer to be searched is located. In other words, what the government seeks is authority for "general warrants," the very evil that the 4th Amendment was designed to outlaw. Even more outrageously, the proposed rule provides in part: "For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant on the person whose property *was* searched or whose information *was* seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person." Not the use of the past tense "was." So after they have drained your computer of all its data, they may permissibly install a batch file that will display a copy of the warrant on your monitor the next time you boot your computer. With a big red lipstick imprint of a kiss imprinted at the bottom. To be continued after this is intially posted to Diigo so the content isn't cut off.