Google Fights Back Against Broader Hacking Powers for FBI

March 3, 2015

Google is using its weight as a technology giant to make it difficult for the Department of Justice to quietly amend the rules involving search warrants for electronically stored media. The company characterizes this amendment as allowing the government “hacking powers.” The public policy arm of the company has been outspoken in its disapproval of the amendment, which would allow the U.S. government to execute warrants for remote access searches of electronically stored media in order to determine the IP address or other identifying information of a device. This would be a change from the current law, which generally permits judges to grant search warrants only within the bounds of their judicial district—meaning law enforcement must know the location of the original server, so that they can get a warrant from a judge in the correct jurisdiction. The amendment, which would alter Rule 41 of the Federal Rules of Criminal Procedure, was suggested by the DOJ’s Advisory Committee on the Rules of Criminal Procedure and is now under review by The Standing Committee on Rules of Practice and Procedure, an advisory committee to the Judicial Conference of the United States.
Google’s Director of Law Enforcement and Information Security, Richard Salgado, asserts that is amendment raises “highly complex constitutional, legal, and geopolitical concerns.” His full comment can be read here. The company wrote in a recent blog post about the amendment that it feels all decisions regarding expansion of warrant power should be left to Congress. Further, Google warns that this amendment could undermine international treaties—most notable Mutual Legal Assistance Treaties (MLATs), which the U.S. government has also recently come under fire for disregarding in its dealings with Microsoft’s data storage centers in Ireland. The blog post also provides a “we the people” argument for striking down the amendment by asserting that this law would “undermine the privacy rights and computer security of Internet users.”
Meanwhile the federal government has countered Google’s remarks by stating that the amendment is merely a tweak in an arcane law in order to align it with the realities of the modern world. Weighing in on the government’s side—perhaps unsurprisingly—is the National Association of Assistant US Attorneys, which claims this amendment is necessary to apprehend sophisticated criminals who hide their IP addresses.
While Google is the only major technology corporation to speak out against this amendment, it is not alone in its concern. The American Civil Liberties Union also issued a comment against the proposed change.

This issue will definitely be one to watch in 2015. If the Judicial Conference approves the amendment, it seems likely—given Google’s early and loud criticism—that this issue could play out in the courts, where Google, being the technology monolith that it is, would be a formidable opponent for the government.

On the other hand, if the Judicial Conference does as Google desires and throws the issue to Congress, we could see some debate, or more than likely we wont see the Google lobbyists working their magic behind the scenes. Even if this amendment fizzles out without much ado, the broader issues of Internet privacy, criminal law, and international interests are unlikely to dissipate any time soon.