On December 1, 2016, a new Supreme Court order went into full effect. This new law will substantially change and broaden the power that federal agents have in regards to surveillance.
The change will actually be an amendment to Rule 41 which belongs to the Federal Rules of Criminal Procedure. The amendment will decrease the requirements for acquiring search and seizure warrants that allow government officials to remotely access the phones and computers belonging to individuals.
Before the rule was amended, it was required that a judge within the jurisdiction would have to provide a warrant. Now, if you are using technology to conceal your location, the warrant is valid no matter what your jurisdiction. One authorization will now provide the ability to perform millions of searches on any private device.
What this would mean is if you use tools such as Freenet or the Tor network to mask your location, you will now fall directly into their hands, and your privacy will no longer exist.
According to USA Today, the rule change was “sought by the Justice Department, adopted by the U.S Federal Courts, and approved on April 28 by the Supreme Court without much fanfare.”
The changes came after the FBI had thrown out evidence on a child pornography case. In the particular case, the defendant was using the Tor network to conceal his IP address. Unfortunately, he was hiding his IP so that he could operate a child pornography website called Playpen. The FBI and Justice Department would not explain how they had obtained evidence, and it was likely due to the fact that they had not followed correct department procedures. Due to this, the evidence was thrown out.
Of course, the dark web has been using sources such as the Tor network for years in order to hide from government authorities, this new amendment to Rule 41 is a catch 22 of justice. It would indeed help authorities to catch individuals who were committing disturbing crimes behind the mask of services that hide your IP, however, there are many who use these services to only maintain privacy on their computers, as is their right and they would now lose this ability due to this amendment.
The Electronic Frontier Foundation has been outspoken in reference to maintaining current policies, rather than amending the rule. They publicly announced concerns regarding the rule:
“The Federal Rules of Criminal Procedure set the ground rules for federal criminal prosecutions. The rules cover everything from correcting clerical errors in a judgment to which holidays a court will be closed on—all the day-to-day procedural details that come with running a judicial system. The key word here is ‘procedural.’ By law, the rules and proposals are supposed to be procedural and must not change substantive rights. But the amendment to Rule 41 isn’t procedural at all. It creates new avenues for government hacking that were never approved by Congress.”
While it is true that many people use the “dark web” to hide their sexual, violent, or otherwise criminal activities, many who use IP masking software are merely activists, whistle-blowers, journalists, etc. The law can be rationalized if you look only at one side of the spectrum, but if you look at the fact that the very future of journalism and activism is now at risk due to such an amendment, the decision becomes a tad more difficult. Are we willing to risk our liberty for the sake of security? And are there not other ways for government agencies to ascertain individuals who are creating truly criminal acts?