Friday, November 4, 2016

Rule 41 Panel Discussion

So the link above is to the Government Hacking: Rule 41 talk held on Nov 2, 2016 panel with Granick, Salgado, Cocker, and several other lawyers heavily involved in the space.

I want to sum this up with two clear things:

  1. Whether you think the rule 41 changes are Substantive (and hence should be delayed and addressed by Congress) or simply a procedural change and therefor should be passed immediately to address major gaps - appears to depend entirely upon who is paying you to argue which side, as Granick points out 
  2. The Government (pro Rule Change, particularly Anello at ~1:40) side appears to intentionally confuse the issue. On one hand they state that it doesn't matter that most of the computers they will be hacking under this order are international because that's handled by multilateral treaties and cannot be handled with Rules or even by Congress. They acknowledge that there's no current way to handle the international issue by law or to handle this issue in the current MLATs. Not only that, there's no way we'd be comfortable with any other country doing what we're proposing to do under this Rule. On the other hand Allison Bragg claims that this does not change that we need the rule - as if there is some way we can make "anonymous computers" definitively domestic pursuant to our searches in some way. 

Straight up, Allison Bragg claims that the Rule change says that "if you don't know where a computer is, if it is domestic, you'll be able to apply Rule 41 to it". That makes NO SENSE from a technical perspective. And it is something that should be called out a bit further by Granick, Cocker and the others on the panel.

It would not be incorrect to state that Bragg thinks "We need this, no matter what the issues with it are, because otherwise we can't prosecute anything". This is probably short-sighted, especially considering this Rule change is not limited to terrorism or child porn cases, but in fact, across the whole board of crimes.

There are a lot of other issues in this area that are not REALLY Rule 41 change-related (particularity concerns with the 4thA, etc.) but are slightly touched upon by the panel, which is full of super-strong legal minds fun to listen to. Although if you are reading this, you probably don't have the time. :)

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