10 Ways To Fight Digital Theft & Fraud

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A Department of Justice proposal would make it easier for FBI investigators to hack into remote devices that have had their location purposefully obscured or that are acting as part of a botnet.

The proposal was published Friday for comment, ahead of a May 29 meeting of the US Judicial Conference's committee that sets policies and procedures for the country's court systems. The proposal would alter search warrant rules -- called Rule 41 in the Federal Rules of Criminal Procedure -- including lifting current restrictions on judges only being authorized to sign search warrants for within their jurisdiction.

Multiple civil liberties and privacy rights groups, however, have warned that the changes would give government investigators too much power, too little accountability, and would affect too many innocent bystanders.

But the Justice Department says that it needs expanded powers to help prosecute online criminals who operate anonymously and across the country's 94 federal judicial districts. "Our rule change will ensure that courts can be asked to review warrant applications for probable cause in situations where is it currently unclear what judge has authority to review a warrant application,” Justice Department spokesman Peter Carr says in an emailed statement. "The proposal makes explicit that it does not work any change to the traditional rules governing probable cause and notice."

[A former Navy admin has been charged with compromising more than 30 government and private sites. Read Navy Nuclear Carrier Sysadmin Busted For Hacking Databases.]

One change contained in the proposal would allow judges to sign warrants that authorize remote access by the FBI to search electronic storage media and to seize or copy electronically stored information if the location of the computer has been concealed through technological means, or for cases involving systems located in five or more districts -- for example, if they're being used as part of a botnet. The bureau also wants the ability to send search warrant notifications to suspects via email or other digital means.

While those requests might sound like simple, necessary changes designed to bust cybercrime syndicates, the devil is in the details. "In one sense, this is a minor change in the rule to allow a judge to issue a warrant to search a specific computer which may or may not be located in the district in which the judge is located," said Mark Rasch, a former federal computer crime prosecutor who's now the chief privacy officer for SAIC, speaking by phone.

The changes would also authorize the FBI, in its pursuit of botnet masterminds or other criminals, to automatically install malware on large numbers of infected PCs. "In plain English, this proposal would permit the government to seek warrants allowing it to hack into computers over the Internet using malware," said Nathan Freed Wessler, a staff attorney with the American Civil Liberties Union's speech, privacy, and technology project, in a blog post. He also warned that the bureau might continue to tap zero-day vulnerabilities to help hack into bot-infected PCs, which could put everyday Internet users at risk if criminals or other nation states reverse-engineered the bugs exploited by the FBI.

Under the proposal, instead of having to obtain search warrants to hack individual PCs, the FBI could use one search order to access large numbers of systems. "What that means is the government could then install its own anti-botnet with one order, infecting not the botnet authors' computer, but the botnet victims' computers," explained SAIC's Rasch. Cue the potential for large numbers of innocent bystanders having their computers and cloud accounts searched by the FBI, despite facing no reasonable suspicion of having done anything wrong.

But according to Rasch, probably the most troubling problem concerns notification. Currently, whenever police

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