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Justice Department Considers Changes To The Patriot Act And Rule 41 For Online Warrants

[Editor's Note: I am happy to feature another post by guest author Arkady Bukh. He leads the law firm of Bukh & Associates, PLLC which specializes in criminal law, family law, and several areas of civil law. He is a frequent contributor on CNN, Wired, Forbes, Huffington Post, and several other sites.]

By Arkady Bukh, Esq.

In the days and months following 9/11, Americans shuffled between wincing in fear and screaming for retribution.

Forgetting Benjamin Franklin’s admonishment that people who give up security for liberty lose both, Americans sat by while some of the most restrictive legislation ever signed was enacted. Justified by claims of “national security,” American citizens watched as their rights were softened. The Patriot Act arguably was the legislative high point during President George W. Bush’s administration.

Lately, calmer heads have prevailed and Congress has started to move to relax some aspects of The Patriot Act as it eliminated others.

One small section of the Patriot Act, Rule 41, may get toughened and expanded while much of America is sidetracked by smartphones and the Kardashians. If the legislation is signed into law, the impact will not only be felt across American, but the tsunami wave of snooping and privacy invasion will perseverate globally.

Tweaks are “Monumental” Violation

While the U.S. Department of Justice (DOJ) has been working to modify a federal criminal procedure making it easier for judges to issue search warrants outside their areas of jurisdiction, Google has been busy warning others about the potential consequences.

Rule 41

The proposed change in Rule 41 of The Patriot Act would allow judges to assign warrants even if the source of a botnet, or another unidentified action, is anonymous and its location unknown. University of California Hastings law professor Ahmed Ghappour told the Ars Technica blog:

"This is another example of the FBI obtaining a warrant that they are not empowered to obtain based on the lack of technological expertise of the courts."

Ars Technica concluded:

"If the proposal is passed as currently drafted, federal authorities would gain an expanded ability to conduct "remote access" under a warrant against a target computer whose location is unknown or outside of a given judicial district. It would also apply in cases where that computer is part of a larger network of computers spread across multiple judicial districts."

In responding to public comments regarding the proposed expansion of Rule 41, the DOJ replied:

“These objections are misplaced here because the proposed amendment is solely about the appropriate venue for applying for such warrants. The existing rules already allow the government to obtain and execute such warrants when the district of the targeted computer is known. Thus, the issue before the Committee is not whether to allow warrants to be executed by remote search; it is whether such warrants should as a practical matter be precluded in cases involving anonymizing technology due to lack of a clearly authorized venue to consider warrant applications. Finally, we note that none of the commenters who expressed opposition to the proposal offered any substantive alternative solution...”

Google’s stance is that the proposal is too broad and would have unintended consequences. Google’s rebuttal adds that Congress should pass laws authorizing the changes, and not a DOJ proposal. Google’s response was filed along with 30 others during the comment period by groups that included the ACLU and the Electronic Frontier Foundation.

Under the proposed modifications, Rule 41 of the Federal Rules of Criminal Procedure authorizes the government to appear before a single Federal magistrate judge in any judicial district in which activities relating to terrorism may have occurred.

This means that the government could go before a single judge to get a warrant to search the property of a person — anywhere. If the state chose to appear in New York, an individual in California who wished to have the warrant squashed, would have to discover a way to appear before the New York Court that issued the warrant.

Rule 41 isn’t the only clause in The Patriot Act that concerns observers.

The Patriot Act

The dangers of The Patriot Act, specifically Section 802, is the definition of “terrorism.”  As defined, domestic terrorism is broad enough to include the actions of several prominent activist groups including Greenpeace, Operation Rescue and others.

The American Civil Liberties Union (ACLU) cited the Vieques Island protests as an example:

"... when many people, including several prominent Americans, participated in civil disobedience on a military installation where the United States government has been engaging in regular military exercises, which these protesters oppose. The protesters illegally entered the military base and tried to obstruct the bombing exercises. This conduct would fall within the definition of domestic terrorism because the protesters broke federal law by unlawfully entering the airbase and their acts were for the purpose of influencing a government policy by intimidation or coercion.The act of trying to disrupt bombing exercises arguably created a danger to human life - their own and those of military personnel."

Using the Vieques Island protests as a starting point, the new government powers can be examined.

Seizure of Assets

Section 806 of The Patriot Act would result in the civil seizure of individual assets without prior hearings and without being convicted of a crime. The language in Section 806 is widespread enough to authorize the government to seize any resources and belongings of any individual involved in Vieques or any group supporting the protests.

Additionally, any individual who supported the groups that supported the Vieques Island protesters would also be subject to Section 806.

The civil asset forfeiture power of the US government is incredible. The government can seize the assets based on the mere assertion that there is a possible cause to think that the assets were linked to“domestic terrorism.”

Educational Record Disclosure

Section 507 requires a judge to issue an order permitting the government to obtain private educational records if the US Attorney General certifies that the records are necessary for investigating terrorism. An independent judicial finding is not required to prove the records are relevant.

The types of records that can be seized include information such as a student’s grades, private medication information, and organizations the student belongs to.

Criminal defense attorneys do not oppose the criminal prosecution of people who violate the law — even if they are performing for political purposes. However, what is anathema is the broad definition of terrorism and the authorization that flows from that meaning.

One way to ensure that the behavior that falls within the meaning of terrorism is, in fact, to limit the scope of the behavior that triggers the charges.

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