back to article FYI: The FBI is being awfully evasive about its fresh cyber-spy powers

Senior US senators have expressed concern that the FBI is not being clear about how it intends to use its enhanced powers to spy on American citizens. Those are the spying powers granted by Congressional inaction over an update to Rule 41 of the Federal Rules of Criminal Procedure. These changes will kick in on December 1 …

  1. JeffyPoooh
    Pint

    As opposed to...

    As opposed to obtaining a warrant from an unknown court in a TBD location to permit determination of the unknown location of the unknown subject to facilitate determination of the appropriate jurisdiction to know the more appropriate court in the first place.

    Hmmm....

    1. Anonymous Coward
      Anonymous Coward

      Re: As opposed to...

      ...privacy.

      1. Anonymous Coward
        Anonymous Coward

        Re: As opposed to...

        ...privacy.

        Ah, but herein lies the rub: if the agencies and law enforcement were made properly accountable for the use of their powers (which requires the sort of transparency they seem desperate to avoid for that exact reason) there would be a valid argument for suspension of privacy because that's how fighting crime tends to work.

        The issue is that handing power to individuals who can hide behind a vast system that seems to be designed to avoid accountability means it will be abused. Not might be abused, will be abused, because if it wasn't they would not be trying to hide what exactly they're doing to "protect" the population.

        All of which suggests they really, really, really need to be forced to open up because there is every thus every suggestion abuse is already taking place right now.

    2. Doctor Syntax Silver badge

      Re: As opposed to...

      "to permit determination of ... the unknown subject "

      You, you and you, all of you, will be suspects with no presumption of innocence.

      1. phuzz Silver badge

        Re: As opposed to...

        Isn't that pretty much the definition of a suspect? The presumption of innocence bit comes when you get to a trial.

        1. Anonymous Coward
          Anonymous Coward

          Re: As opposed to...

          " The presumption of innocence bit comes when you get to a trial."

          The function of the police is to gather facts - any suspects who the facts show are innocent are no longer suspects. However - it was once said that the police arrest people because they "just know" they are guilty - of something.

        2. Trevor_Pott Gold badge

          Re: As opposed to...

          Bullshit. In the US they threaten you until you take a plea bargain, even though you're innocent. There is no justice in the United States.

          Hasn't been for a long, long time. Maybe ever.

          1. dan1980

            Re: As opposed to...

            @Trevor_Pott

            While I don't doubt your assessment, at least the US has the right to silence enshrined in the constitution. That is absolutely critical because it means that you have a clear option: just say nothing. I'm not saying they won't threaten you because it is a simple fact that the police are fully allowed to outright lie to a suspect to pressure them. BUT, compare that to the UK and Australia, where the right to silence is more a legal tradition that a codified right.

            In Australia, if you don't spill to the cops and later spill to the court (e.g. provide a alibi on trial that you didn't give to the police) you can - and will be - judged negatively for that.

            1. Trevor_Pott Gold badge

              Re: As opposed to...

              In the US, they'll just torture you until you tell them whatever they want to hear. *shrug*

              Australia is the US of the east. Both countries are run by ****ing barbarians.

  2. Anonymous Coward
    Anonymous Coward

    Thankstaking

    Well, since they will have it down to 1 warrant, I'm confident they'll have it down to zero warrants in a few years.

    Sad that the Thanksgiving news today doesn't seem that much different than it did 500 years ago, being that there is still no restraint for the blind persecution that lies ahead.

  3. dan1980

    Whilst I have previously said that I at least understand the catch-22 and the problem it presents, I find the FBI's argument particularly annoying.

    I agree that it is a problem that needs consideration because it's clear that you can't get a warrant in the correct jurisdiction if you cannot identify the location. There is no doubt that this situation can - and does - result in guilty people going free.

    But then that is always the trade-off with due process and legal protections afforded to the public. After all, surely the Fifth Amendment also results in many guilty people going free? But that's the very basis of what we consider our western legal system*: innocent unless and until proven guilty says that we, as a society, would rather a guilty person go free than an innocent person be incarcerated.

    It is, in short, the representation of the ideal that liberty is to be placed above safety. Unfortunately, this is something that our politicians and law enforcement agencies - and all too many citizens - have abandoned.

    To come back to my grievances with the FBI's hand wringing, however, I find it distasteful that they paint themselves as having a deep respect for the rules of law and playing by them not just because they have to but because they are so darned upright they wouldn't dream of breaking them.

    They make the plea that they are doing everything they can but their hands are tied. To an extent, that is not a lie. The problem I have with this line of argument is that the FBI, as noted in this article (and the linked one), have a history of not revealing the methods they used to identify people.

    This has been most notable in the 'Stingray' cases, where the devices and techniques were used in situations (theft of fired poultry, anyone?) far beyond what anyone could consider reasonable. This is a general law enforcement problem and the core issue is quite simply that they (the LEAs) want to be able to circumvent the rules of evidence and due process whenever it pleases them, without having to justify or explain themselves.

    Always, they plead on the most emotional or extreme cases - pedophiles and terrorists - but the changes they demand are so broad as to cover anything they want. And this is no mistake as, once in place, they are indeed used for anything they want.

    Here, the FBI cite a very specific problem and complain that they aren't able to prevent something very bad because of some rules but their demand is for a blank cheque. If they were really, genuinely as concerned about these cases as they claim then they would propose changes so tightly-focussed and controlled that it would be nearly impossible for legislators to deny them.

    In a way, it's like a child insisting they need a computer for school (imagine it back in the early 90s when you didn't really need one) because otherwise they will fail, all for lack of this vital resource. But the only computer they will accept is a fully-spec'ed monster with three screens and dual video cards and SSDs, complete with a low-latency Internet connection for, errr, faster research.

    * - Not that other parts of the world aren't on the same page, of course.

    1. Mark 85

      Well said. And there in is the problem... a blank check for one case, no matter how hard justified, makes the next one easier. And the one after that, even easier. Scary times here in the States as we have no idea which agencies will be allowed to run amok.. including Congress*.

      *Not an agency but definitely on the running amok list....

  4. Anonymous Coward
    Anonymous Coward

    Grandad...

    Tell us again about the days when the Government, praise be to our Glorious Leader, didn't know your every thought and move. It must have been lonely.

    Well kids,...

    1. Anonymous Coward
      Anonymous Coward

      Re: Grandad...

      "Tell us again about the days when the Government, praise be to our Glorious Leader, didn't know your every thought and move."

      It's a question of scale. In the past societies relied on people informing on each other. They also relied on banning or censoring things to prevent people being tempted from the approved way.

      The internet seemed to blow that approach out of the water - until it reached the point where nearly everything we read, buy, watch, or listen to has an electronic trail. The Victorian panopticon has come of age with the Snooper's Charter. Welcome to the goldfish bowl world - except of course for the law makers and snoopers who (theoretically) have exemption.

  5. MrDamage Silver badge

    surely

    By deploying malware to identify the machine, they have effectively tampered with evidence, thus rendering it inadmissable in court.

    1. Anonymous Coward
      Anonymous Coward

      Re: surely

      "By deploying malware to identify the machine, they have effectively tampered with evidence, thus rendering it inadmissable in court."

      There are other considerations too - if the rabbit hole they run down leads them to the UK, installing that malware could possibly be a breach of the Computer Misuse Act, which would mean the agents are committing felonies in the course of their investigation.

      1. Anonymous Coward
        Anonymous Coward

        Re: surely

        Yes, exactly how many CIA agents were tried in absentia by an Italian court and are still sought for an extraordinary rendition?

        1. Sir Runcible Spoon

          Re: surely

          "I'm sorry your honour, I cannot provide the password to those encrypted files that were found on my computer. Have you consider that they were put there by the FBI as part of a general round-up of people they didn't like this week?"

          "No. See you in 2 years when I will ask you again."

  6. Anonymous Coward
    Anonymous Coward

    The FBI

    Trump's Fifth Column.

    1. herman

      Re: The FBI

      Err... Trump moved into the White House and was inaugurated already? Wow, I must have blinked and not seen Obama high tailing it out of there.

      1. Anonymous Coward
        Anonymous Coward

        Re: The FBI

        "Err... Trump moved into the White House and was inaugurated already?"

        A Fifth Column is a body of people inside a government's organisations - who work to overthrow the current government by using their powers and authority to effect misinformation and sabotage.

  7. Dan 55 Silver badge
    Flame

    That "think of the children" quote justifying it

    Was it not the self-same FBI that was running kiddie porn servers?

    Yes, yes it was.

    Their moral compass needs changing, the one they've got at the moment doesn't work.

    1. tiggity Silver badge

      Re: That "think of the children" quote justifying it

      Yes,

      http://thenextweb.com/security/2016/11/11/the-fbi-likely-ran-nearly-half-the-child-porn-sites-on-the-dark-web-in-2016/

      The moral issues are "interesting" to say the least

      1. Anonymous Coward
        Anonymous Coward

        Re: That "think of the children" quote justifying it

        Even before the internet the US law agencies were apparently running various undercover vice rackets very successfully. They even managed to put the criminals out of business in some areas - while their own operations became the market's main supplier.

        IIRC The Vice Squad in London in the 1960/70s? was disbanded after it was found they were helping some of the criminals in return for favours.

        The problem with law enforcement is that there is always a temptation to use entrapment or "interpretation"** to boost the case for more funding or for career enhancement.

        ** looking for anything that can be spun to look like evidence to fit a fashionable offence.

      2. Anonymous Coward
        Anonymous Coward

        Re: That "think of the children" quote justifying it

        how do you spell "entrapment" ? F.. b .. something ..

  8. Wolfclaw
    Big Brother

    So what happens when they hack a system outside US, will this not breach those laws and the FBI agent who did the hacking should be extradited and imprisoned, oh hang on, forgot, US Of Ass Clowns can do anything they like. US security services becoming more and more like the Gestapo, Stasi and KGB of old, with a little help from corrupt and inept politicians !

    1. Adam 52 Silver badge

      It's a very good point. Cracking someone in a different jurisdiction would still be a crime in that jurisdiction, and if done by a state actor then a nation state attack on another country.

      No doubt the UK would roll over and sign a treaty that allows the US to hack their citizens (but not the other way around) but I can't see China doing so, so there could be some interesting tit-for-tat exchanges. Let's hope it doesn't provoke a shooting war.

      1. Doctor Syntax Silver badge

        "Cracking someone in a different jurisdiction would still be a crime in that jurisdiction"

        Unless, of course, you accept the argument that jurisdiction lies with the country where the cracker was located at the time of the act. Remind me why people are being extradited to the US.

    2. imanidiot Silver badge

      And just like what happened with the Stasi and to a lesser extend the KGB, eventually people will revolt and tear down these organisations. I doubt it's a matter of if, more of when, given the current directions of the US three-letter-agencies. My only hope is that the US of A citizens can manage to pull it off without bloodshed or starting a new civil war in the process.

  9. John Smith 19 Gold badge
    Coat

    Is anyone hearing

    "We had to destroy the constitution in order to save it"?

    It's just me then.

  10. Anonymous Coward
    Anonymous Coward

    I was completely okay with Hillary's administration having this type of power, but now that Trump is in office I'm horrified. What if they spy on the wrong people?

    1. imanidiot Silver badge

      Not sure if serious....

      1. You aint sin me, roit

        They are trying to be facetious and suggest that if Hilary's big government were in place then they would disapprove of it, but as Trump's small government is in charge it will be OK.

        Apparently the rights and wrongs of the FBI have to be viewed through party political lenses.

  11. Anonymous Coward
    Anonymous Coward

    vital for snaring pedophiles, drug dealers, organized crime, and online fraudsters

    and pirates (sans offshore ones operating off their boats). And pirates' mates and thieves, large and small, because no crime is small! And extremits, frankly, just terrorists in disguise, those evildoers. And violent free trade protesters, aren't they extremits?! - see above. And commies, let's shall don't forget the red basterds! (Vlad, Vlad, stop hopping like mad, we're pals now, remember!)

  12. Doctor Syntax Silver badge

    "The amendments would apply in two narrow circumstances:

    First, where a suspect has hidden the location of his or her computer using technological means"

    I.e. connected it to the internet. I'd like to see his definition of wide.

  13. clean_state

    Red tape is not a proper way to stop abuse

    FBI agents should be able to do their jobs with clear rules and minimal obstruction. Here, they still need a warrant so the rules are clear. There is less paperwork and that is a good thing because FBI agents should be doing more policing work, and less meaningless paperwork.

    Privacy is also a primary concern but for that, we need clear rules. Additional meaningless paperwork will just slow them down, not prevent them from investigating political opponents if that is your concern (and it should be).

    For example, a clear rule that that classifies all correspondance as, well, correspondance, protected by the 4th amendment, regardless of the medium it is written on is the kind of safeguards needed. It is laughable that there could even be a discussion about this: https://www.cnet.com/news/doj-we-dont-need-warrants-for-e-mail-facebook-chats/

  14. Anonymous Coward
    Anonymous Coward

    Surely now we have windows 10 3 letter agencies on need to send the magic packet over the secured channel to de-cloak the user and to start to ex-filtrate data, screen shots and webcam captures, no extra requirement to send spyware needed.... sorry i mean to write, for microsoft to upload telemetry for testing purposes and that fell out.

  15. Anonymous Coward
    Anonymous Coward

    Prophet Ali G

    New cyber powers for the Feds!

    FB. Aii.

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