Our editorial: Rule change would gut 4th Amendment

The Detroit News
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If Americans had no civil liberties, it would be a snap to keep the country safe and secure. Police states are highly effective at dissuading criminal activity and rooting out threats.

But as inconvenient as it often is for law enforcement, we do have a Bill of Rights that guarantees protections and procedures aimed at keeping us free, as well as safe.

Unfortunately, in recent years, many Americans have been too willing to forfeit those rights in the name of battling perceived existential threats, most notably drugs and terrorism. And federal agencies are all too keen about snatching bits and pieces of our freedoms to make it easier for them to do their jobs without the bother of adhering to the Constitution.

The latest example comes from the Justice Department, which has slipped a major intrusion on the Fourth Amendment into nearly 400 pages of arcane rule changes being considered by a judicial committee.

Federal prosecutors want to make it easier to find and hack into computers being used for cyber crimes, including child pornography and identity theft.

The Fourth Amendment limits property search warrants to geographical areas in which the signing judge has jurisdiction. The government claims the rules are no longer adequate in an era when cyber criminals can use their computers to not only hide their identity, but their whereabouts as well.

The proposed changes would allow judges in a district “where activities related to a crime” have occurred to issue a warrant. That would allow prosecutors to search computers currently outside their reach.

Civil libertarians are rightly concerned that the language of the proposal would sidestep the constitutional requirement that warrants be specific about who and what is being targeted by a search.

They’re also concerned that the vagueness of the wording makes it unclear what type of information would fall within the government’s reach, and fails to protect the privacy of those not under investigation, but in contact with the targeted computers.

The new rule would permit investigators to attach software to a computer that would surreptitiously track its activity. But critics say the proposal also opens the door for the same tracking software to be placed on the computers of victims of cyber crime, and without their knowledge.

Constitutional requirements that the target of a search warrant be notified would be scuttled. And it raises the possibility that searches could be extended beyond the boundaries of the United States and into sovereign countries.

The popular search engine Google is opposing the change, saying it “raises a number of monumental and highly complex constitutional, legal and geopolitical concerns that should be left for Congress to decide.”

Amen to that. If approved by the Judicial Conference of the United States, the rule change then goes to the Supreme Court for its OK, and on to Congress. Lawmakers don’t have to approve the change, but they can vote to block it.

Such a major repurposing of the Fourth Amendment should not be allowed to quietly pass without vigorous congressional debate.

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