Rule 41 is one of the 61 Federal Rules of Criminal Procedure, which are the guidelines for how the U.S. government conducts criminal investigations. In particular, this rule covers search and seizure and how warrants are issued. Without Congressional oversight or approval, on December 1, 2016, the DOJ changed this rule, ‘tweaked it’ to be more up to date for our Internet age of cyber crime and help the FBI nab ‘the bad guys’. Sounds reasonable, right? Well, read on…
There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Although I feel each and every word of this as my own, Supreme Court Justice Antonin Scalia made this very bold and strong statement.
It’s amazing to hear the ringing bells of “In The Name of National Security” we need to violate the US Constitution from various agencies such as the NSA and in this case, in particular, the FBI. There are great people in both of those agencies doing tremendous work to protect America but somehow, some at the top, have forgotten their oath to defend the US Constitution against all enemies foreign and domestic. An oath is sacrosanct. The US Constitution is one of the most amazing futuristic societal documents that could propel America thousands of years into a peaceful future with liberty and justice for all. Without finding ways to defend “National Security” that do not violate the US Constitution and negatively impact the very critical balance in our scales of Justice, America may become the experiment of Freedom that failed the test of time.
Just think about the Fourth Amendment. In the 1760’s, British authorities in the Colonies, here, were allowed to carry out unwarranted searches of anyone at anytime, regardless of whether or not they were a criminal suspect. John Adams crafted the Fourth Amendment specifically to guard against this ever happening again, on American soil and he wrote that “a warrant must specify the persons or objects of search, arrest, or seizure.”
Now, under the tweak to Rule 41, the Department of Justice has slapped cold water on the face of John Adams and our Founding Fathers, giving the FBI unprecedented powers to literally spy on, hack, collect information from anyone in America through their internet connection and all of their internet devices – from their computer to their baby monitor. It sounds completely nuts when you think about this but their argument is that they need to make law enforcement more effective in a digital age.
“Show me your Papers! No not these, your Internet Papers! All of them!”
Here are a few scenarios that could put you in the cross-hairs of an unwarranted search of your very personal and private space:
The ‘minor’ tweak to Rule 41, which took place very quietly on December 1, 2016, is a MAJOR wake-up call to all of us – the US Constitution continues to burn and may never be saved, if we don’t have Citizen Oversight – this means it’s time for an intelligent dialog, maybe in Congress about how Rule 41 and the use of a blanket license to spy on all of us is a very big mistake that, as Antoni Scalia, rest his soul, would say smacks of a lack of faith in our Founders and the straightforward and simple meaning of the Fourth Amendment.
Personally, I believe in a society where the Rule of Law, with a very open and balanced system of justice, protects all of us.
If we don’t defend this great experiment, maybe the greatest societal experiment of all time, based solely on the US Constitution and our Bill of Rights as a foundation, we may wake-up to find there is no greater enemy to America, then those who do not honor their oaths and respect this great Nation built on the rightd of privacy, liberty and justice for all. When someone digitally goes into your home and says to your computer “SHOW ME YOUR PAPERS” without a specific warrant granted by a Judge on the notion that you, specifically, are a person of interest, with known CRIMINAL INTENT, we wake up in a dsytopia that is not America.
There are ways to stop cyber criminals, there are ways to take down botnets, there are ways to find online predators, pedophiles, cyber gangs, terrorists and other really bad people but these ways may be a little harder, may require a bit more intelligent navigation, tools and technologies and ultimately more specifically issued, not blanket warrants – yet the harder path, the fine line walking down the middle of the road of Justice is the only way to go. Americans should no longer be victimized ‘just because’ – our computers and internet of things devices should be stronger – strong encryption, no backdoors, no holes, means a stronger society that values privacy.
Less breaches mean less cybercrime, a stronger, healthier economy and increase in GDP, thus a healthier tax base to support our government. But it must once again become a Constitutional government – one that honors our Founders and focuses on the hard work of finding the needles, not eavesdropping on the entire haystack of our fragile society. It’s so hard to quantify how important privacy is to the very fabric and foundation of America. Maybe I could ask my friends in the FBI and NSA if they all would, just for a day, walk around a major city Naked – yes completely Naked – for, as you see, “they have nothing to hide, so why should they be afraid to show us everything?” that is their argument for this overreach – if we have nothing to hide, what should we worry about? Ask John Adams, and if he were alive, he would tell you, this is not a question to be asking in America. We, the People, make this nation great, because we honor the US Constitution and each others right to privacy.
(Americard image courtesy of artist Ian Geldard)
Benjamin Franklin once said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Let this not be our time to fail our Founders. Friends in the NSA and FBI, put your clothes back on, keep your purses and wallets and what is in them private and safe among your personage and honor our rights to do the same, whether they be physical or digital in nature.
In the Federalist Papers, written by three of our Founding Fathers, Alexander Hamilton, James Madison, and John Jay, in 1788, remind us, “The US Constitution is to limit the power of the federal government, not the American people.”
About The Author
Gary is the CEO of SnoopWall, Inc. and a co-inventor of the company’s innovative breach prevention technologies. He is a cyber-security expert and a frequent invited guest on national and international media commenting on mobile privacy, cyber security, cyber-crime and cyber terrorism, also covered in both Forbes and Fortune Magazines. He has been extremely active in the INFOSEC arena, most recently as the Editor of Cyber Defense Magazine. Miliefsky is a Founding Member of the US Department of Homeland Security (http://www.DHS.gov), the National Information Security Group (http://www.NAISG.org) and the OVAL advisory board of MITRE responsible for the CVE Program (http://CVE.mitre.org). He also assisted the National Infrastructure Advisory Council (NIAC), which operates within the U.S. Department of Homeland Security, in their development of The National Strategy to Secure Cyberspace as well as the Center for the Study of Counter-Terrorism and Cyber Crime at Norwich University. Previously, Gary has been founder and/or inventor for technologies and corporations sold and licensed to Hexis Cyber, Intel/McAfee, IBM, Computer Associates and BlackBox Corporation. Gary is a member of ISC2.org and is a CISSP®. Email him at [email protected]
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