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Tuesday, May 24, 2016


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Chanson de Roland

The two things that are most disturbing about the proposed changes to Federal Rule of Criminal Procedure 41 (Crim. 41) are how they were done and what those changes do. The controversial changes to Crim. 41, which have the potential, depending on how the federal courts would interpret them, were done through a bureaucratic process in the judicial branch of government, which is for considering and promulgating changes in the administration of justice and the rules of procedure. That process is not meant to change or affect the rights of U.S. persons. In fact, the federal statute authorizing this process, 28 U.S.C. § 2072, mandates that the process of changing the rules of procedures shall not affect anyone’s substantive rights:

Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

28 U.S.C. § 2072 (b). Yet, depending on how the federal courts interpret Crim. 41, it may do exactly what both the U.S. Constitution, as the supreme law of the land, and 28 U.S.C. § 2072, supra, forbid it to do. And this potential mischief was done in a way by the Department of Justice that obscured what was done from the public view.

What was done?

Unlike some of the sources that the Editor cites, supra, I don't have any problem with one of the effects of Crim. 41. That is where Crim. 41 expands the territorial jurisdiction of judges and magistrate judges so that, as provided by Crim. 41, they can issues search warrants that extend beyond the territory of their district. So a federal judge or magistrate in New York City, when faced with cybercrime that occurs in many places in the country or is of unknown location, can issue a search warrant that will be valid anywhere that the cybercrime is having its effect. That, I think, is simply a sensible concession to the realities of the Internet age, where, unlike prior times, crime knows no boundary or border or even set geographic location. Restricting the scope of search warrants to federal court district, many of which were drawn in the last century or even the 19th century, makes not sense in the Internet age.

The problem with Crim. R. 41 is that it does much more than expand the territorial scope of search warrants. If read, I believe incorrectly, it could permit a judge or magistrate to authorize the search of any computing device that is connected to the Internet or any other interstate network, which has been affected by cybercrime, even the computing devices of innocent persons, whose only involvement in the cybercrime is that they are victims of it. If so read, that search would permit federal law enforcement authorities to conduct massive searches of any affected computer.

That is going way too far, because it violates several provisions of the U.S. Constitution’s Bill of rights, e.g., the 1st, 4th, and 5th Amendment, and would also violate precedent that limits the reach of search warrants, applying much more restrictions on warrants that search the property of innocent and uninvolved persons than it places on suspected criminals. Innocent persons are entitled to notice before the search occurs, unless exigent circumstances dictate otherwise, and notice must be given forthwith as soon as practical; the authorities must obtain the innocent person’s consent to the search or afford him a reasonable opportunity to challenge the search in court; the search can’t unduly burden any of the property rights of the innocent person whose property is being searches; importantly, the government can’t search at all, if it can obtain what it seeks elsewhere or by other reasonable and practical means; and the search can’t interfere with any of the innocent person’s other substantive rights, especially his constitutional rights. This is what the U.S. Constitution and 28 U.S.C. § 2072 (b), and precedent requires. And, if read in that way, Crim R. 41 might not do much harm, and the DOJ’s virtually clandestine effort to amend Crim. R. 41 to dramatically expand the government authority to search the computers of even innocent people would come to very little and perhaps nothing.

But the problem is that the language of Crim. R. 41 is not expressly qualified to conform to the mandates of the U.S. Constitution, law, and precedent. Crim. R. 41’s language could be read to authorize the search of any computing device that is connected to any interstate network which is affected by cybercrime. That’s the mischief that Senators Paul and Wyden are most concerned about. Their approach to eliminating that danger is to legislatively veto the changes to Crim. R. 41, instead of amending it to comply with law. That approach is certainly preferable to allowing Crim. R. 41 to go into effect as written.


A coalition of 50 organizations, including public interest groups, privacy tool providers, and Internet companies, have united against Rule 41 changes. Cindy Cohn, the Executive Director of the Electronic Frontier Foundation (EFF) said:

"Any expansion of law enforcement’s ability to remotely attack computers should be thoroughly considered by Congress, not passed off as a minor procedural adjustment. Yet Rule 41 would grossly expand the power of law enforcement to seek orders to attack and exploit computers around the country and around the world, with no statutory guidance, safeguards, or consequences for the harm they will cause."

Learn more, read the advice from several experts, sign the online petition, and contact your elected officials:

Stop the Changes To Rule 41


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