Last week a change to Rule 41 of the Federal Rules of Criminal Procedure, a statue that covers Fourth Amendment search and seizure warrants, was enacted. The change allows federal judges to submit a warrant for the hacking of digital devices outside of their jurisdiction. Montana Republican Senator Steve Davies told David Welna of NPR that the change to Rule 41 should, “send a shiver down the spine of all Americans.” The change was created to help the courts submit warrants for criminal activity that is hard to detect online, as online perpetrators can easily remain anonymous. There was little deliberation from Congress regarding the rule change leading up to its enactment. Oregon Democratic Senator Ron Wyden also told Welna that, “The government won’t tell…the American people how it would protect [privacy] rights, or how it would prevent collateral damage, or even how it would carry out these hacks…In effect, the policy is, ‘trust us’.”
The change to Rule 41 is yet another example of the government exercising power outside of its rigid, defined role. The protection of individual rights is the only purpose of government and should be the only subject of laws. Legislation must focus on the protection of individual rights. The updated version of Rule 41 doesn’t explicitly emphasize the protection of individual rights. While it can be argued that the change to the rule protects individual rights because it improves the chances of bringing online criminals to justice, what it really does is grant the federal courts a broad and loosely defined power to potentially meddle in citizens’ devices and personal data. The rule change also lacks objectivity as it is unclear to both Congress and the American people what is being done to ensure protection of privacy rights from the rule and how a warranted hack would be performed. This rule change is a gross expansion of government powers that doesn’t blatantly improve or protect individual rights and abandons the proper role of government.
The change to Rule 41 is also a compromise between the governed and the government. I vehemently oppose compromises. There should never be a compromise between the freedom of individuals and government control. When the citizenry accepts government controls at the expense of individual freedoms, they abandon the guarantee of inalienable individual rights in place of unrestrained, arbitrary governmental power. Compromises should not occur, especially between the government and the individuals whose rights they’re supposed to guarantee and protect. The trade-off in the Rule 41 compromise is that the people allow state sponsored hacking of personal devices in exchange for a mere increase in the likelihood that federal judges will be able to convict and prevent anonymous online criminals from continuing their behavior. The compromise is unequal and isn’t worth the potential damage to individual rights, particularly one’s right to privacy. The change to rule 41 is a compromise that betrays the principles of the government and American citizens. The government betrayed its role as an institution that solely protects individual liberties, and the governed betrayed their principles as individuals with an inalienable right to privacy. For these reasons, I disagree with the change to Rule 41.