jan17_b.indd


January 2017 49 C&RL News

Adam Eisgrau is managing director of the Office of 
Government Relations, email: aeisgrau@alawash.org

W a s h i n g t o n  H o t l i n eAdam Eisgrau

Search warrant freezes, funding squeezes 
mark close of 114th Congress for ALA 
Washington
Name notwithstanding, Washington Hotline 
bulletins often involve glacial legislation. 
Not this time. Rule 41 of the Federal Rules 
of Criminal Procedure is a hot topic inside 
the Beltway and a front burner issue for 
ALA’s Washington Office—and for good 
reason.

Tasked with investigating and prosecut-
ing criminal cyberattacks, the FBI has long 
sought expanded legal authority to take 
active “countermeasures” to neuter or dis-
able computers believed to be controlling 
or participating in cybercrime. 

To the public this may initially seem 
like a reasonable approach, but scores 
of experts have pointed out that such 
“hacking back” raises a host of questions 
and deep concerns. These include the 
likelihood that the computers of innocent 
individuals may be incorrectly targeted by 
law enforcement; possible damage to ma-
chines, or the information on them, against 
which the government strikes back; and 
the enormous impact on personal privacy 
when the government enters a computer 
that holds a person’s sensitive health or tax 
records, intimate correspondence, photos, 
and financial data.

Had the government gone to Congress 
to ask for a change in existing privacy 
laws, then that likely would have triggered 
multiple hearings where these issues could 
have been publicly explored. Instead, how-
ever, the FBI asked a little-known judiciary 

advisory committee established to make 
changes in federal court procedures to 
dramatically broaden what kind of hacking 
they can engage in and how many com-
puters (potentially millions) they can act 
against under a single warrant issued by a 
single judge of the government’s choosing. 
Rule 41, adopted by the committee early 
in 2016 over the public objections of many 
groups, was the result.

By law, Congress was given the op-
portunity to put the new Rule 41 on hold, 
but only if it affirmatively acted to do so 
before December 1. While several bills to 
do just that were introduced, the Rule is 
now in full effect.

Look for a major push in the new Con-
gress, and for ALA’s Washington Office to 
ask for your help, to retroactively freeze 
searches under Rule 41 in their tracks.

On the good news side of the ledger, 
the new 115th Congress can afford—lit-
erally —to reconvene in January. Faced 
with the prospect of another government 
shutdown for lack of financial operating 
authority, as virtually its last substantive 
official act, the outgoing 114th passed a 
so-called “continuing resolution” to keep 
the lights on in every corner of the federal 
government through April 28, 2017. 

The continuing resolution maintains 
funding across the board at current 
(FY2016) levels previously approved. For 
libraries, that means $210 million for LSTA 
and Innovative Approaches to Literacy 
grants and about $1.1 billion more for 
critical institutions and programs like the 
E-rate, Library of Congress, GPO, National 
Library of Medicine, and libraries for our 
troops and their families.