On Thursday, December 1, a Supreme Court order went into effect that dramatically expanded the surveillance power of federal agents. The alteration to Rule 41 of the Federal Rules of Criminal Procedure softened the legal requirements for obtaining search and seizure warrants that grant the government remote access to an individual’s computers and phones.
Up til now, law enforcement was required to obtain a warrant from a judge within the jurisdiction where the search was to take place. But under this new system, if an person is using technology to conceal their location, the warrant is considered valid…regardless of jurisdiction. A single authorization will now have the potential to validate millions of searches on private devices. Any journalist, activist, or whistleblower who values privacy and uses tools like Freenet or the Tor network will fall directly into the crosshairs.
These changes were sought and hurried into existence since the FBI had evidence thrown out in a recent child porn case. The defendant was using the Tor network to conceal his IP address and operated a child porn site called Playpen. The Department of Justice and FBI refused to disclose the legal process used to gain access to the evidence, likely because they didn’t follow proper legal protocols. As a result, at least some of their evidence was rejected by the court.
The controversy was added to when the FBI used Playpen’s servers to set up a massive sting, known as Operation Pacifier. The pedophilia porn site was run directly by federal agents for over two weeks in an attempt to round up any people using the network. These same agencies are now claiming that without changes to the current rule, their ability to put the scum of society behind bars is severely restricted.
The deep web has been subverting the controllable marketplace for years, but through the eyes of the government, anything outside of their dominance is equivalent to insurrection. Online anonymity creates a double-edged sword of freedom versus lawlessness, so it’s no surprise significant action was taken to crack down on this space under the guise of national security and public safety.
The modification of Rule 41 was framed as crucial in preventing crime even though implementing it grants sweeping authority to the State.
Typically, any changes that carry these broad implications are debated in Congress, but by classifying the move as a simple procedural change, the discussion was instead held by the small U.S. Courts Advisory Committee on the Federal Rules of Criminal Procedure following the Department of Justice’s request to modify the rule. The alteration was approved by the Supreme Court. The lack of publicity received for something so fundamental shows there has been a deliberate effort to conceal the consequences of this scheme.
The Electronic Frontier Foundation has been an outspoken advocate for maintaining the current protections. The organization has voiced its concerns about the new 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.”
The media has done an excellent job of demonizing the deep web and the anonymous networks that make it up. By focusing on stories like the Silk Road and its founder Ross Ulbricht (among others who use anonymous systems to conceal state-designated criminal activity), the media has convinced the public that anonymity and criminality are one and the same. The federal government has long held this belief; during a crackdown in 2014, the FBI targeted more than 400 Tor addresses in an attempt to identify the actual locations of anonymous servers.
Maintaining complete privacy doesn’t matter to those whose biggest worry is having their porn history made public. But it’s the underground railroad for renegades working against the establishment. Journalists who are communicating with sources or establishing an outlet for whistleblowers need a layer of protection that can encourage others to feel safe coming forward. As activism and social media continue to merge, it’s essential that the leadership of dissenting movements can coordinate action without having to worry about infiltration.
Removing these kinds of limitations on power takes a huge step towards further watering down the 4th Amendment of the Bill of Rights, making probable cause on an individual basis a thing of the past. The desire for privacy cannot be considered suspicious in a world where almost all personal information is a matter of public record.eft to hold back the constant progression of invasive statism.
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