By letter to House Speaker Paul Ryan on April 28, 2016, the Supreme Court adopted two significant amendments to Rule 41 of the Federal Rules of Criminal Procedure–the rule governing search and seizure. The amendments, if enacted, expand a federal magistrate’s jurisdiction to issue warrants for remote search and seizure of electronic records located outside of the judge’s district. Unless Congress acts before December 1, the amendments will take effect.
Let’s start with the current rule. Rule 41(b) defines a judge’s authority to issue a warrant, and generally limits that authority to search and seize persons or property located within the magistrate’s district. Out-of-district searches are limited to certain enumerated events. For example, when the property is located in the magistrate’s district but moves before the warrant is executed. Likewise, a tracking device installed in the district may track movement outside of the district. Another exception exists in terrorism investigations and where activities related to terrorism occurred within the magistrate’s district but evidence resides outside.
Under the current rule, federal prosecutors must seek a warrant to search and seize electronic information in the district where the data resides. In this era of Silk Road, Tor, advanced encryption and ever-changing technology, however, identifying the location of electronic information is a challenge. In response to these challenges, the Department of Justice (DOJ) has lobbied for two additional exceptions for out-of-district searches and seizures, both concerning electronic records. The amendments, if enacted, would authorize a judge to issue a search and seizure warrant for electronic data inside or outside of the district where either:
- technology is used to conceal the location of the media to be searched; or
- in a computer fraud investigation, the media to be searched include protected computers that have been damaged and are located in five or more districts.
Critics say the amendments are tantamount to law enforcement hacking, and greatly expand the government’s substantive, not procedural, authority under Rule 41. For example, a judge in Virginia could authorize federal agents to search a computer located in California, or even Thailand for that matter, so long as the location of the computer is unknown. The potential for international application may also conflict with current diplomatic arrangements, including existing Mutual Legal Assistance Treaties between the U.S. and foreign nations.
The amendments, critics also suggest, could impact anyone using routine and legitimate privacy tools to protect their electronic data. For example, many businesses use Virtual Private Networks (VPNs) to connect remote offices or to allow employees to remotely access the corporate intranet. The use of VPNs, which also increase privacy and security, has been cautioned as an example of technological “concealment” arguably suggested by the proposed changes.
In response to strong opposition – including from the world’s largest technology companies – the DOJ counters that the amendments don’t create a new right to search or otherwise alter existing statutory or constitutional requirements. Rather, the amendments address only permissible venue. This is a critical distinction as the amendment process utilized by the Judicial Conference Advisory Committee on Criminal Rules is reserved for rules of practice and procedure. Substantive changes, on the other hand, are the purview of congressional lawmaking.
The technologies central to this issue are undoubtedly complex, and the potential implications of the amendments are not fully realized. It is evident, however, that the amendments may not pass quietly. At least one member of Congress, Sen. Ron Wyden (D-Oregon), has called for Congress to reject the changes. Whether Congress heeds the call and requires further debate remains to be seen.