Google is boldly opposing an attempt by the US Justice Department to expand federal powers to search and seize digital data, warning that the changes would open the door to US “government hacking of any facility” in the world.
In a strongly worded submission to the Washington committee that is considering the proposed changes, Google says that increasing the FBI’s powers set out in search warrants would raise “monumental and highly complex constitutional, legal and geopolitical concerns that should be left to Congress to decide”.
The search giant warns that under updated proposals, FBI agents would be able to carry out covert raids on servers no matter where they were situated, giving the US government unfettered global access to vast amounts of private information.
In particular, Google sounds the alarm over the FBI’s desire to “remotely” search computers that have concealed their location – either through encryption or by obscuring their IP addresses using anonymity services such as Tor. Those government searches, Google says, “may take place anywhere in the world. This concern is not theoretical. … [T]he nature of today’s technology is such that warrants issued under the proposed amendment will in many cases end up authorizing the government to conduct searches outside the United States.”
Google raised its objections as part of a public consultation that ended on Tuesday. Its submission, and 37 others made by interested parties, will be considered by the Advisory Committee on Criminal Rules, an obscure but powerful Washington body consisting mainly of judges that has responsibility over federal rules including those governing the actions of the FBI.
Federal agents wishing to search a property have to apply to a judge for a warrant to do so. Under existing rules, known as Rule 41, the authorizing judge has to be located in the same district as the property to be searched.
But the Justice Department argues that in the modern computer age, such an arrangement no longer works. It is calling for the scope of warrants to be widened so that FBI agents can search property – in this case computers – outside the judge’s district. The FBI argues that this new power would be essential in investigations where suspects have concealed the location of their computer networks.
A comment to the committee from a coalition of prosecutors, the National Association of Assistant US Attorneys, said that “suspects are increasingly using sophisticated anonymizing technologies and proxy services designed to hide their true IP addresses. This creates significant difficulties for law enforcement to identify the district in which the electronic information is located.”
The Justice Department itself has tried to assuage anxieties about its proposed amendment. In its comment to the committee, DoJ officials say that federal agents would only request the new type of warrants where there was “probable cause to search for or seize evidence, fruits, or instrumentalities of crime”.
But civil liberties and legal groups remain unconvvinced, insisting that the language is so vaguely worded that it would have draconian and global implications. In its submission, the American Civil Liberties Union said that the proposed changes could violate the fourth amendment of the US constitution, which bans unreasonable searches and seizures.
The ACLU’s principal technologist, Christopher Soghoian, said: “The government is seeking a troubling expansion of its power to surreptitiously hack into computers, including using malware. Although this proposal is cloaked in the garb of a minor procedural update, in reality it would be a major and substantive change that would be better addressed by Congress.”
The FBI has been developing its computer surveillance techniques over almost 15 years. It now regularly uses “network investigative techniques”, or NITs, to implant malware software onto target devices that in effect allow agents to control the machine – they can turn on or off cameras and recording equipment, download the entire database of information and gain access to other linked computers.
Google argues such tactics run the risk of the private information of innocent third parties being hoovered up in a massive data sweep.
Recent high-profile hacks such as the breach of Sony Pictures, which the FBI blamed on North Korea, have highlighted global cybersecurity as a growing area of importance for the Obama administration. But the US government now stands accused of trying to acquire the ability to carry out routine extra-territorial hacking raids that it has accused other countries of conducting.
Google contends that by doing so, the US government risks undermining diplomatic arrangements it has built up with other countries over many years that allow cross-border investigations to take place with the approval of all parties.
“The US has long recognized the sovereignty of nations,” the company says in its submission, quoting legal authorities that say that in the absence of a treaty or other national agreement, “the jurisdiction of law enforcement agents does not extend beyond a nation’s borders”.
In October, FBI director James Comey gave remarks – widely derided by privacy watchers and tech-industry officials – in which he said “encryption threatens to lead us all to a very, very dark place”.
Comey asked: “Have we become so mistrustful of government and law enforcement in particular that we are willing to let bad guys walk away, willing to leave victims in search of justice?”