DOJ gets new legal tool to go after botnets

The Justice Department is eliminating a key legal gap that has stymied or killed past federal botnet investigations, Leslie Caldwell, assistant attorney general announced.

Under new rules, federal law enforcement won't be required to file in almost 100 individual federal districts for search warrants to track down and kill sprawling national botnet attacks.

The rules of criminal procedure dating back to 1917 had posed a substantial obstacle to botnet investigations, Caldwell said in a Nov. 22 blog post.

To get information on a specific botnet or piece of malware from one computer requires a search warrant from a judge in the jurisdiction where the computer is located. Since botnets can leverage millions or even hundreds of millions of computers, that procedural hurdle can pose a logistical nightmare for investigators.

"The result is that while we are struggling to keep up with criminals who, as you read this, are committing mass, harmful hacking of our computers, our own archaic procedural rules may prevent investigators from taking timely, smart, lawful and court-supervised enforcement action," she wrote. "In short, under our current procedures, botnets may be 'too big to investigate.'"

Three years ago, the Justice Department proposed a fix to the rules, proposing new rules requiring agents to meet the same exact constitutional requirements as before, but with botnet cases, if computers in five or more jurisdictions were attacked, agents would only have to bring warrant applications to a single federal court, rather than in each jurisdiction.

The rule, she said, doesn't change probable cause rules, but only identifies that a single court is authorized to consider questions in the context of an application for a search warrant.

The Supreme Court signed off on the new rules, which are due to take effect on Dec. 1.

Sens. Ron Wyden, D-Ore. and Chris Coons, D-Del., issued a statement on Nov. 22 criticizing Justice Department officials for failing to "substantively answer" the legislators' questions about the new rule's potential for abuse. The senators had asked what would prevent government investigators from "forum shopping" to find the most agreeable court to issue a search warrant, and whether citizens would be further harmed by investigators hacking into their compromised devices.

Wyden called the department's Nov. 18 response "a big blinking warning sign about whether the government can be trusted to carry out these hacks without harming the security and privacy of innocent Americans’ phones, computers and other devices." He and Coons both said Congress should pass legislation blocking implementation of the new rule.