Edward Snowden: The Rule 41 Amendment Returns Us to the 1760s

How should we view the amendment to Rule 41? Edward Snowden would have you believe it returns us to a time when a tyrant ruled over America.


Edward Snowden believes the amendments to Rule 41 of the Federal Rules of Criminal Procedure, which regulates legal search and seizure, has returned us to the days when America was ruled by a tyrant. “The [FBI] is now openly issuing the general warrants that, in 1760, led John Adams to first dream of independence,” he wrote in a tweet. For privacy advocates, like Snowden, this change flies in the face of the rights our founding fathers fought to secure. For law enforcement officials, this amendment is a necessary alteration which fits the digital age. For American citizens, it’s a double-edge sword.

The changes made to Rule 41 took effect on December 1. The new version will allow federal agencies to obtain a warrant for “remote-access” searches and seizures of digital materials. Rule 41 now reads:

"A magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts."

What concerns many is now that federal agencies have this power, how will it be used?There are two real-world scenarios which may offer some insight. 

In 2015, the FBI took a child pornography website on the Dark Web and used it in a sting operation. Malware was deployed to any computer visiting the site, which resulted in the identification of over 1,500 pedophiles. This operation was done on a single warrant, which defense lawyers successfully argued was invalid.

The amendment to Rule 41 addresses this issue. Today, a magistrate judge has the authority to issue a warrant outside of their district, requiring no knowledge of the location of the computers being searched.

What concerns many privacy advocates and what should concern many citizens is innocent bystanders can become collateral in these searches. Take the victims of the Mirai botnet attack, in which hackers took advantage of weak security protocols on routers, security cameras, and more IoT devices. While innocent of the crime, the new rule would allow federal agencies to copy all material on these hacked devices.

Government access to the computers of botnet victims also raises serious privacy concerns, as a wide range of sensitive, unrelated personal data could well be accessed during the investigation,” the Electronic Frontier Foundation, an internet privacy group, wrote in a blog post. “This is a dangerous expansion of powers, and not something to be granted without any public debate on the topic.

Snowden believes Rule 41 flies in the face of the Fourth Amendment. To give some historical context, back in the 1760s,British authorities were allowed to carry out searches of anyone at anytime, regardless of whether or not they were suspected of a crime. John Adams sought to make sure these invasive searches and seizures were never carried out again when drafting the Fourth Amendment. In it, he wrote "a warrant must specify the “persons or objects of search, arrest, or seizure."

Rule 41 has expanded the power of the Department of Justice. It's an attempt at making law enforcement effective in a digital age. Whether the spirit of the Fourth Amendment will be maintained under this newly amended rule will be put to the test.

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Yale scientists restore brain function to 32 clinically dead pigs

Researchers hope the technology will further our understanding of the brain, but lawmakers may not be ready for the ethical challenges.

Still from John Stephenson's 1999 rendition of Animal Farm.
Surprising Science
  • Researchers at the Yale School of Medicine successfully restored some functions to pig brains that had been dead for hours.
  • They hope the technology will advance our understanding of the brain, potentially developing new treatments for debilitating diseases and disorders.
  • The research raises many ethical questions and puts to the test our current understanding of death.

The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?

But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.

What's dead may never die, it seems

The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.

BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.

The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.

As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.

The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.

"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.

An ethical gray matter

Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.

The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.

Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.

Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?

"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."

One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.

The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.

"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.

It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.

Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?

The dilemma is unprecedented.

Setting new boundaries

Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."

She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.

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