The Department of Justice is defending controversial changes to Rule 41 of the Federal Rules of Criminal Procedure which would give law enforcement expanded authority to hack computers in large numbers and multiple judicial districts with just a single search warrant.

The updates to Rule 41 were approved by the Supreme Court and, barring any congressional action, will take effect on December 1.

Assistant Attorney General Leslie R. Caldwell addressed what she described as “the abuse of internet anonymizing technology, and the need for the amendment to the Federal Rules of Criminal Procedure adopted by the Supreme Court to ensure that investigators can identify the right court from which to seek a search warrant,” in an agency blog post.

She used the recent investigation of the Playpen website as a case study to drive home her argument. The Playpen website was a Tor site used by more than 100,000 pedophiles to encourage sexual abuse and exploitation of children and to trade sexually explicit images of the abuse, according to Caldwell.

Court-authorized remote searches in the Playpen case have led to more than 200 active prosecutions – including the prosecution of at least 48 alleged hands-on abusers, said Caldwell.

According to Cladwell, the Playpen prosecutions still face an additional obstacle: a loophole in judicial procedures that makes it unclear which court – if any – an investigator is supposed to go to with a search warrant application when investigating anonymized crime. 

“Despite being prepared to comply fully with the Fourth Amendment’s warrant requirements, including persuading a federal judge that a lawful basis for a warrant exists, investigators are being told that, because criminals have successfully used technology to hide their location, there is no court available to hear their warrant application.”

 ‘Unless that nonsensical outcome is addressed, cases such as Playpen fail, meaning that pedophiles – including hands-on abusers – will be free to continue their crimes,” she added.

In a second blog post, Caldwell used the growing threat of botnet attacks as another justification for an expansion of the hacking authority.

“Beyond the technical obstacles, several key legal gaps can stymie botnet investigations and remediation before they even get off the ground.  One such obstacle is in the Federal Rule of Criminal Procedure governing search warrants,” argued Caldwell.

“Liberating a computer from a botnet might require first obtaining some information from that computer, such as what version of the malware it is running.  If the government wants to obtain that information, it might need a search warrant.  If investigators seek a warrant to search a single infected computer, they are authorized to bring the warrant application to the court where the computer is located.  And if investigators seek to search multiple infected computers—for example, to determine what kind of computers have been infected or what operating systems they are running—and those computers happen to be located in a single judicial district, they can bring their application to a single judge in that district,” she added.