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U.S. judges propose updating warrants for Tor, remote searches: p338 (2014)

155 points by mkempe 12y ago

mkempe 12y ago
The Federal Government seeks to change the rules to obtain warrants automatically against anyone using VPN or Tor -- because these are means of hiding the location of a computer. See page 338 of the linked PDF.
- deleted 12y ago
  [deleted]
  - deleted 12y ago
    [deleted]
    - DamnYuppie 12y ago
      Broad sweeping authority to circumvent standard process designed to protect the rights of an individual is never a great idea.
      - EpicEng 12y ago
        So, let me guess; you only read the HN title. The substance of the post proclaims nothing of the sort
        DamnYuppie 12y ago
        My response was to a comment, which is apparently now deleted, and not to the article itself.
      - 16bytes 12y ago
        If the current law says that you need to be in the targets jurisdiction to obtain a warrant, and you can't find the target's location because they are obscuring it via a VPN or Tor, doesn't it make sense that the government should be able to get a warrant in the jurisdiction where the crime was committed? Can you link to the part that is changes to "broad sweeping authority"?
    - sarciszewski 12y ago
      You're right. I was responding to the title. Sorry I wasn't specific on that. Can anyone explain if the changes do what the headline suggests?
comrade1 12y ago
Presumeably this will not apply to corporate VPN users...
- chaostheory 12y ago
  How can they differentiate between the two?
- 0dmethz 12y ago
  Haha! Do you really believe that?
  - comrade1 12y ago
    Sarcasm is lost on the internet.
- deleted 12y ago
  [deleted]
wahsd 12y ago
Next up, automatic warrants against anyone who does not live in a glass house. Because not living in a glass house is a means for obscuring illegal activity. Heil USA!
slapshot 12y ago
I'm just an unfrozen caveman lawyer (and not your lawyer), but if the following is the relevant part then it appears the change here is only that the judge who issues the warrant may be where the victim is located rather than where the servers are located. Normally, a warrant must be issued by a judge sitting where the evidence is to be collected. This seems to say that if you're hiding your location, the judge in the victim's district can issue the warrant instead of having the Catch-22 of not being able to find the right district because you can't track down the server because you don't have a warrant. Magistrate judges issuing warrants is normal -- they do most of the day-to-day evidence work outside of trials. a magistrate judge with authority in any district 8 where activities related to a crime may have 9 occurred has authority to issue a warrant to use 10 remote access to search electronic storage media 11 and to seize or copy electronically stored 12 information located within or outside that district 13 if: 14 (A) the district where the media or information 15 is located has been concealed through 16 technological means (edit: added language from the PDF -- key is the "if") (edit 2: Original headline was "FBI seeks automatic warrants against users of VPN and Tor (p. 338) [pdf]" since it's going to get changed)
- declan 12y ago
  Yep, as <slapshot> says, the HN headline is in error and should be changed. At the very least the word "automatic" should be deleted. It incorrectly implies lack of discretion on the part of the magistrate judge. Now, perhaps many magistrate judges may be too willing to issue warrants, but that's a different discussion. And there have been plenty of examples where they've raised important issues dealing with electronic surveillance; I highlighted Magistrate Judge Orenstein's opinion re: warrantless cell tracking in this 2005 article: http://news.cnet.com/Police-blotter-Cell-phone-tracking-rejected/2100-1030_3-5846037.html http://news.cnet.com/Police-blotter-Cell-phone-tracking-reje...
  - dang 12y ago
    Can anyone please suggest an accurate title? We will change it.
    - 12y ago
manulp 12y ago
If my understanding is correct, it is a bit more complicated. The magistrate with authority in a district may only issue a warrant for a remote search if: * The crime investigated occurred at least partially in the district. * The device location was hidden by any mean (vpn, tor, etc.). This doesn't say anything about obtaining warrants automatically if someone is using VPN or Tor.
angersock 12y ago
Relevant section: (6) a magistrate judge with authority in any district 7 where activities related to a crime may have 8 occurred has authority to issue a warrant to use 9 remote access to search electronic storage media 10 and to seize or copy electronically stored 11 information located within or outside that district 12 if: 13 (A) the district where the media or information 14 is located has been concealed through 15 technological means; or Note that this doesn't even point out VPN/Tor by name, just "concealed through technological means", which might even be broadly interpreted to include WHOIS privacy guard services or other really silly things.
- fixermark 12y ago
  It's also not authorizing automatic warrants; it's just increasing the range of magistrates who could be authorized to issue a warrant. But if our headlines stick too close to the facts, they don't make it to the front page of HN, right? ;)
rurban 12y ago
I don't understand. Is it this sentence at pg 338? "(A) the district where the media or information is located has been concealed through technological means" But this applies to warrants, and would apply to all of SSL or SSH traffic ("information") or password protection of the PC or media, or sending encrypted word documents, not just vpn, ipsec or tor. Even binary formats would qualify as concealed. I don't see anything about tor or vpn.
- lbearl 12y ago
  It isn't about concealing the information, it is about concealing the ultimate origin of the request. If you have an SSL session without going through a VPN or other proxy there is a direct relationship between you (the originator of the request) and the server (providing or receiving the possibly encrypted information).
Glyptodon 12y ago
If I read correctly, it's clarifying magistrate judges' authority to issue a warrant given resources behind VPN/Tor/similar might otherwise cause jurisdictional issues, among other things. It doesn't seem to be changing probable cause requirements. But I may not be reading correctly.
fixermark 12y ago
I believe the HN headline is in error. This proposed amendment appears to authorize a wider range of magistrate judges to issue a warrant if the jurisdiction cannot be determined because the computers in use have had their location concealed (via Tor or VPN, among other technologies, is the inference the original poster appears to make). How do we leap from "Feds can ask more magistrate judges for warrants" to "Automatic warrants?" It still has to pass someone's sniff test, right?
- Tobu 12y ago
  > a magistrate judge with authority in any district where activities related to a crime may have occurred Weasely enough that the warrant-seeker could pick a pet court wherever they have computers. There's a judge who made Marshall, East Texas the place to find software patents infringed with maximum damages. A similar venue would pop up.
cdwhite 12y ago
It's not clear to me how these warrants are "automatic". FTAmendments: "a magistrate judge [...] has authority to issue a warrant to use remote access to search electronic storage media [...]" (emphasis mine) IANAL, though; could someone who knows more explain what's going on? How will the procedure and requirements for obtaining a warrant for such "remote access" differ from those for searching, say, a house? Edit: as I typed, slapshot posted some helpful explanation.
cryoshon 12y ago
Great, one more step toward a panopticon.
dragonwriter 12y ago
There is nothing about "automatic" warrants in that document, just an amendment that would: 1) Extend venue for warrants for remote searches, in cases where the location of the servers is either obscured or in certain cases where the targeted computers located in five or more districts, to magistrate judges in any district, rather than just magistrate judges in the district where the computers are located (Rule 41 amendments pp. 338-339, lines 14-21), and 2) Specify how notice must be provided when searches are conducted on the basis of a warrant for remote access search (id., lines 33-43).
handsomeransoms 12y ago
I think the title of this post is misleading. For context, see the summary of the amendment on p. 324, under "ACTION ITEM—Rule 41 (venue for approval of warrant for certain remote electronic searches)". The goal of this amendment (appears to me, a non-laywer) to be to allow judges to issue warrants for crimes that occur in their jurisdiction, for materials that may not be in their jurisdiction, when the location of the materials has been obfuscated with an anonymizing technology. I don't think this is an "automatic warrant" - they still have to establish probable cause, etc. A more interesting sentence from p. 325 discusses the mechanism by which the search may be carried out: "The proposal speaks to two increasingly common situations affected by the territorial restriction, each involving remote access searches, in which the government seeks to obtain access to electronic information or an electronic storage device by sending surveillance software over the Internet."
dsp1234 12y ago
Does this decision increase the likelihood of venue shopping? If the DOJ/FBI can ask any magistrate judge in any jurisdiction, then can't they find the most lenient judge, just by keeping statistics over time about the number of rejections or edits required, with the closest to 100% warrant issuance rate? Is there any counter-balance to this type of scenario?
NoMoreNicksLeft 12y ago
Will this allow for judge-shopping? If I claim that I can't determine a location, can I then pick a judge who's more likely to grant the warrant? How would someone challenge that, can the FBI just shrug and say "we couldn't figure it out" ?
godgod 12y ago
2015 feels like 1984. This criminal government is out of control. They feel the need to control EVERYTHING.
harken22 12y ago
Would this apply retroactively to warrants already issued? We know that in the Freedom Hosting takedown, an exploit was deployed by the FBI to identify the machines of users on the Freedom Hosting network. After that incident, there has been no resulting arrests from that intelligence. Lets suppose the FBI deployed their exploit on Freedom Hosting's servers but ran into legal issues afterwards with their search warrants due to their jurisdiction. If this were to pass, would it retroactively legalize those warrants that were issued in July 2013?
fixermark 12y ago
An interesting side-effect of this change in warrant law would be that domestic law enforcement would be authorized to access, remotely (and possibly destructively, since it can be hard to tell precisely how a remote machine is configured), machines that are not physically located in U.S. jurisdiction, since the anonymizing proxies can make geographical origin hard to figure out. I imagine this interpretation of the law works until and unless a major government declares that tampering with their citizens' private property without the citizens' consent while it is housed within the government's sovereign territory is tantamount to an act of war. But practically speaking, that scenario is unlikely (from any nation with enough firepower for the U.S. to care).
spammyusername 12y ago
Thanks eagle-eyed sycophants of the state for amending the title so it's harder to understand the practical impact of this proposal. More colossal stupidity.

155 points by mkempe 12y ago

The Federal Government seeks to change the rules to obtain warrants automatically against anyone using VPN or Tor -- because these are means of hiding the location of a computer. See page 338 of the linked PDF.

deleted 12y ago
[deleted]
- deleted 12y ago
  [deleted]
  - DamnYuppie 12y ago
    Broad sweeping authority to circumvent standard process designed to protect the rights of an individual is never a great idea.
    - EpicEng 12y ago
      So, let me guess; you only read the HN title. The substance of the post proclaims nothing of the sort
      - DamnYuppie 12y ago
        My response was to a comment, which is apparently now deleted, and not to the article itself.
    - 16bytes 12y ago
      If the current law says that you need to be in the targets jurisdiction to obtain a warrant, and you can't find the target's location because they are obscuring it via a VPN or Tor, doesn't it make sense that the government should be able to get a warrant in the jurisdiction where the crime was committed? Can you link to the part that is changes to "broad sweeping authority"?
  - sarciszewski 12y ago
    You're right. I was responding to the title. Sorry I wasn't specific on that. Can anyone explain if the changes do what the headline suggests?

comrade1 12y ago

Presumeably this will not apply to corporate VPN users...

chaostheory 12y ago
How can they differentiate between the two?
0dmethz 12y ago
Haha! Do you really believe that?
- comrade1 12y ago
  Sarcasm is lost on the internet.
deleted 12y ago
[deleted]

wahsd 12y ago

Next up, automatic warrants against anyone who does not live in a glass house. Because not living in a glass house is a means for obscuring illegal activity. Heil USA!

slapshot 12y ago

I'm just an unfrozen caveman lawyer (and not your lawyer), but if the following is the relevant part then it appears the change here is only that the judge who issues the warrant may be where the victim is located rather than where the servers are located. Normally, a warrant must be issued by a judge sitting where the evidence is to be collected. This seems to say that if you're hiding your location, the judge in the victim's district can issue the warrant instead of having the Catch-22 of not being able to find the right district because you can't track down the server because you don't have a warrant. Magistrate judges issuing warrants is normal -- they do most of the day-to-day evidence work outside of trials. a magistrate judge with authority in any district 8 where activities related to a crime may have 9 occurred has authority to issue a warrant to use 10 remote access to search electronic storage media 11 and to seize or copy electronically stored 12 information located within or outside that district 13 if: 14 (A) the district where the media or information 15 is located has been concealed through 16 technological means (edit: added language from the PDF -- key is the "if") (edit 2: Original headline was "FBI seeks automatic warrants against users of VPN and Tor (p. 338) [pdf]" since it's going to get changed)

declan 12y ago
Yep, as <slapshot> says, the HN headline is in error and should be changed. At the very least the word "automatic" should be deleted. It incorrectly implies lack of discretion on the part of the magistrate judge. Now, perhaps many magistrate judges may be too willing to issue warrants, but that's a different discussion. And there have been plenty of examples where they've raised important issues dealing with electronic surveillance; I highlighted Magistrate Judge Orenstein's opinion re: warrantless cell tracking in this 2005 article: http://news.cnet.com/Police-blotter-Cell-phone-tracking-rejected/2100-1030_3-5846037.html http://news.cnet.com/Police-blotter-Cell-phone-tracking-reje...
- dang 12y ago
  Can anyone please suggest an accurate title? We will change it.
  - 12y ago

manulp 12y ago

If my understanding is correct, it is a bit more complicated. The magistrate with authority in a district may only issue a warrant for a remote search if: * The crime investigated occurred at least partially in the district. * The device location was hidden by any mean (vpn, tor, etc.). This doesn't say anything about obtaining warrants automatically if someone is using VPN or Tor.

angersock 12y ago

Relevant section: (6) a magistrate judge with authority in any district 7 where activities related to a crime may have 8 occurred has authority to issue a warrant to use 9 remote access to search electronic storage media 10 and to seize or copy electronically stored 11 information located within or outside that district 12 if: 13 (A) the district where the media or information 14 is located has been concealed through 15 technological means; or Note that this doesn't even point out VPN/Tor by name, just "concealed through technological means", which might even be broadly interpreted to include WHOIS privacy guard services or other really silly things.

fixermark 12y ago
It's also not authorizing automatic warrants; it's just increasing the range of magistrates who could be authorized to issue a warrant. But if our headlines stick too close to the facts, they don't make it to the front page of HN, right? ;)

rurban 12y ago

I don't understand. Is it this sentence at pg 338? "(A) the district where the media or information is located has been concealed through technological means" But this applies to warrants, and would apply to all of SSL or SSH traffic ("information") or password protection of the PC or media, or sending encrypted word documents, not just vpn, ipsec or tor. Even binary formats would qualify as concealed. I don't see anything about tor or vpn.

lbearl 12y ago
It isn't about concealing the information, it is about concealing the ultimate origin of the request. If you have an SSL session without going through a VPN or other proxy there is a direct relationship between you (the originator of the request) and the server (providing or receiving the possibly encrypted information).

Glyptodon 12y ago

If I read correctly, it's clarifying magistrate judges' authority to issue a warrant given resources behind VPN/Tor/similar might otherwise cause jurisdictional issues, among other things. It doesn't seem to be changing probable cause requirements. But I may not be reading correctly.

fixermark 12y ago

I believe the HN headline is in error. This proposed amendment appears to authorize a wider range of magistrate judges to issue a warrant if the jurisdiction cannot be determined because the computers in use have had their location concealed (via Tor or VPN, among other technologies, is the inference the original poster appears to make). How do we leap from "Feds can ask more magistrate judges for warrants" to "Automatic warrants?" It still has to pass someone's sniff test, right?

Tobu 12y ago
> a magistrate judge with authority in any district where activities related to a crime may have occurred Weasely enough that the warrant-seeker could pick a pet court wherever they have computers. There's a judge who made Marshall, East Texas the place to find software patents infringed with maximum damages. A similar venue would pop up.

cdwhite 12y ago

It's not clear to me how these warrants are "automatic". FTAmendments: "a magistrate judge [...] has authority to issue a warrant to use remote access to search electronic storage media [...]" (emphasis mine) IANAL, though; could someone who knows more explain what's going on? How will the procedure and requirements for obtaining a warrant for such "remote access" differ from those for searching, say, a house? Edit: as I typed, slapshot posted some helpful explanation.

cryoshon 12y ago

Great, one more step toward a panopticon.

dragonwriter 12y ago

There is nothing about "automatic" warrants in that document, just an amendment that would: 1) Extend venue for warrants for remote searches, in cases where the location of the servers is either obscured or in certain cases where the targeted computers located in five or more districts, to magistrate judges in any district, rather than just magistrate judges in the district where the computers are located (Rule 41 amendments pp. 338-339, lines 14-21), and 2) Specify how notice must be provided when searches are conducted on the basis of a warrant for remote access search (id., lines 33-43).

handsomeransoms 12y ago

I think the title of this post is misleading. For context, see the summary of the amendment on p. 324, under "ACTION ITEM—Rule 41 (venue for approval of warrant for certain remote electronic searches)". The goal of this amendment (appears to me, a non-laywer) to be to allow judges to issue warrants for crimes that occur in their jurisdiction, for materials that may not be in their jurisdiction, when the location of the materials has been obfuscated with an anonymizing technology. I don't think this is an "automatic warrant" - they still have to establish probable cause, etc. A more interesting sentence from p. 325 discusses the mechanism by which the search may be carried out: "The proposal speaks to two increasingly common situations affected by the territorial restriction, each involving remote access searches, in which the government seeks to obtain access to electronic information or an electronic storage device by sending surveillance software over the Internet."

dsp1234 12y ago

Does this decision increase the likelihood of venue shopping? If the DOJ/FBI can ask any magistrate judge in any jurisdiction, then can't they find the most lenient judge, just by keeping statistics over time about the number of rejections or edits required, with the closest to 100% warrant issuance rate? Is there any counter-balance to this type of scenario?

NoMoreNicksLeft 12y ago

Will this allow for judge-shopping? If I claim that I can't determine a location, can I then pick a judge who's more likely to grant the warrant? How would someone challenge that, can the FBI just shrug and say "we couldn't figure it out" ?

godgod 12y ago

2015 feels like 1984. This criminal government is out of control. They feel the need to control EVERYTHING.

harken22 12y ago

Would this apply retroactively to warrants already issued? We know that in the Freedom Hosting takedown, an exploit was deployed by the FBI to identify the machines of users on the Freedom Hosting network. After that incident, there has been no resulting arrests from that intelligence. Lets suppose the FBI deployed their exploit on Freedom Hosting's servers but ran into legal issues afterwards with their search warrants due to their jurisdiction. If this were to pass, would it retroactively legalize those warrants that were issued in July 2013?

fixermark 12y ago

An interesting side-effect of this change in warrant law would be that domestic law enforcement would be authorized to access, remotely (and possibly destructively, since it can be hard to tell precisely how a remote machine is configured), machines that are not physically located in U.S. jurisdiction, since the anonymizing proxies can make geographical origin hard to figure out. I imagine this interpretation of the law works until and unless a major government declares that tampering with their citizens' private property without the citizens' consent while it is housed within the government's sovereign territory is tantamount to an act of war. But practically speaking, that scenario is unlikely (from any nation with enough firepower for the U.S. to care).

spammyusername 12y ago

Thanks eagle-eyed sycophants of the state for amending the title so it's harder to understand the practical impact of this proposal. More colossal stupidity.