UPDATE (11/18/16): A report from The Hill earlier today discussed a proposed bill that would delay the changes discussed below. The changes are set to take effect on December 1, 2016. The Review the Rule Act, which according to the article has bipartisan support, would delay the effective date of the Rule 41 amendments until January 1, 2017, in order to give Congress time to review the changes in more detail. The article can be found here.
Rule Changes
The pending December 2016 amendments to Rule 41 of the Federal Rules of Criminal Procedure have caused quite a stir.
The first change occurs in subsection (b), where “Authority to Issue a Warrant” is changed to become “Venue to Issue a Warrant.” This change summarizes the main reason why these amendments do not create any concerns–the changes are procedural, not substantive.
The second two changes are substantive additions in which venue to obtain a warrant is expanded.
A new subsection (b)(6) states the following:
“(6) 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.”
The third change occurs in section (f)(1)(C), which adds one sentence to cover the receipt of a warrant in circumstances defined in (b)(6).
“For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant and receipt on the person whose property was searched or who possessed the information that was seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person.”
The full text of what Rule 41 will look like in December is below, with additions and changes highlighted in yellow.
Commentary
Opponents of the rule claim it creates a vast authority for law enforcement and government officials to access almost any computer. They pose hypotheticals where victims of cybercrime and hacks will be preyed on even further by the government if these amendments were to go into effect. The Electronic Frontier Foundation poses such scenarios here, and Slate chronicles other companies’ concerns here. In my personal view, I highly value privacy and am all in favor of holding the government to the constitutionally imposed standards before intruding into citizens’ lives. These amendments, however, do not amount to the doomsday scenarios that critics claim. In fact, the amendments do not create any new authority for law enforcement officers or prosecutors, nor do they expand any existing authority.
The changes for Rule 41 simply broaden the number of places law enforcement can go to have a warrant signed. It expands which magistrate judges have the authority to sign a warrant under certain circumstances. The jurisdictional problems posed by the internet and computer crimes are widespread. This subtle change to one procedural part of the warrant process is just one minor step to address some of those problems. Further, these procedural changes only operate under relatively narrow circumstances.
Critics of the amendments suggest that the FBI and other government entities would now have a broad new authority that did not exist before. The amendments to Rule 41 create no such change. The standard for obtaining a warrant is the same as it always was—probable cause. The probable cause is for a warrant for evidence of a crime, contraband or fruits of a crime, property designed or intended to be used in a crime, or a person. This language means the statute only applies to criminal investigations. This is not an intelligence gathering statute. The fundamental protections offered by the Fourth Amendment will be no different after these amendments than they were before. The Federal Rules for Criminal Procedure are just that—procedural rules. Expanding which judges are able to issue a warrant under a select few set of circumstances does not fundamentally alter the process for obtaining a warrant. Law enforcement and prosecutors alike must still convince a Federal magistrate judge that probable cause exists. And as Susan Hennessey of Lawfare discussed in a recent comment, the procedure for developing these amendments is not a hollow one.
Critics who equate these procedural amendments to a newfound authority for federal law enforcement to look into every individual’s private computers grossly overestimate the resources at the government’s disposal. Yes, scenarios in which the government has overstepped its bounds certainly exist. Cynical views of the government are sometimes validated. But the limited resources available to federal law enforcement and prosecutors completely preclude the idea that the FBI or other agencies will be obtaining warrants to casually peruse computers. And, as previously mentioned, the scenarios in which these amendments will come into play are limited.
Another potential point of concern is the issue of notice when data is searched. Presently, and for a long time, many searches never provide notice to the person who owns the data. The third party record doctrine enables law enforcement officers to service notice on whoever is holding the data, or package, etc. See U.S. v. Miller, 425 U.S. 435 (1976). Allowing law enforcement to service notice remotely simply saves the government the time and money of sending someone to the physical location where the computer is to be searched. For example, a federal agent in New York would have had to fly to California to perform a search on Microsoft’s servers and provide notice to them. Now, the agent can perform the search and serve notice remotely. Time and money are saved, and no one’s privacy rights are at all affected. Note that in the above scenario, Microsoft is the one who receives notice of the search and a receipt of items seized. The person who owns the data is none the wiser.
The amendments to Rule 41 are not the doomsday scenario some may suggest. In fact, they barely spark any change and maintain the status quo. The amendments do not create any vast new authority for the government, but simply make some minor technical changes allowing for expanded venue and a logistically easier process for law enforcement agents, saving time and money. The burden on the government remains the same, and this amendments are limited to only criminal investigations.
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