Some of you may already be aware that the Electronic Frontier Foundation (EFF) is one of the groups I support. Privacy, security, and freedom for the individual is one of my touchstones. I have written about these topics previously, both here and at AVNation.tv. (Yes, there will be overlap between this post and the one over there. My opinion hasn’t changed.)
There are proposed rule changes within the Federal Rules of Criminal Procedure that the EFF has made me aware of. I do not claim to be an expert on all the legalities and intricacies, however from the comments that the EFF have provided I immediately felt it was important to comment on. The proposed amendment to procedural Rule 41 would allow a judge to issue a warrant allowing law enforcement to remotely enter (hack) a computer when “the district where the media or information is located has been concealed through technological means,” or when the media are on protected computers that have been “damaged without authorization and are located in five or more districts.”
The first portion of this means that if one uses a means to hide their location, for any reason, a search warrant would be allowed. At AVNation I spoke about how this applies to business environments where Virtual Private Networks (VPN) are used to provide a secure connection between remote users and the office. A byproduct of that process is that one’s location is incorrect quite often, sometimes on purpose. When I travel to China I use VPN for personal use. I purposely set my VPN to connect me to a point of presence located in the US. This decision allows me to access my e-mail as well as other sites, such as news sites like New York Times or Los Angeles Times. I can continue on about the Great Firewall of China, but these couple of links should help provide background https://en.wikipedia.org/wiki/Great_Firewall or https://www.eff.org/search/site/china%20firewall.)
I also use a VPN connection, as well as other tools, when I am using a public hotspot. In fact I am using one right now as I sit in Starbucks using their WiFi. This approach prevents eavesdroppers to my communication. I will say that Google and Starbucks do a good job keeping things safe, however not everyplace is as secure. I want to keep my data encrypted as long as I can. Yes, there is Hyper Text Transfer Protocol Secure (HTTPS) that is secure and I use it as much as possible, but not every site supports it or for all traffic.
I can continue on as to why I use VPN, the important thing to take away is that there are legitimate legal reasons to use VPN. The fact that I use it should not change the way my data/privacy is viewed by the courts. To overly simplify it would be like saying, you locked the door to your car so you have given us a reason to issue a search warrant.
The second portion of the new procedure is also damaging in that it allows for innocent computers to be searched if they have been remotely hacked. If a computer is an unwitting member of a botnet that would meet a qualification for a search warrant. The infected or innocent computer could be searched even if the owner is not involved or suspected of wrong doing. Basically if someone has already broken into your computer, the government can break into it again as your computer might be doing bad things.
To me there is a third reason that this issue is important – this process is being done under the guise of procedural rules. There is no debate, no review by elected officials, just a procedural change to allow more access. Yes, Congress has to vote to approve the rules, but there was very little notice of the process. Luckily groups such as EFF and others are around to alert people to the changes. There is the comment of, “Well if you aren’t doing anything wrong, you have nothing to worry about.” I agree and understand that sentiment, but I also believe that once the first domino has fallen the erosion of privacy will continue. To quote James Madison, “There are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.” This procedural step is a gradual and silent move to most people.
Also if there is nothing to worry about, please send me your laptop or phone without clearing the history first. I will be more than happy to inspect it for you.
Notes:
Much of this information was gathered from the webpage https://www.eff.org/deeplinks/2016/06/help-us-stop-updates-rule-41.
The lock pick image is public domain from Wikimedia. More information about it at https://commons.wikimedia.org/wiki/File%3ALockpicking_Pickset.jpg.