By Ryan White
(Re-published from Crossroads: Cybersecurity Law and Policy, Nov. 9, 2016) The pending December 2016 amendments to Rule 41 of the Federal Rules of Criminal Procedure have caused quite a stir.
Summary of Rule Changes
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:
(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):
The full text of what Rule 41 will look like in December can be read here, with additions and changes highlighted in yellow.
Commentary: What Do These Rule 41 Amendments Mean?
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 view, I highly value privacy, and I 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 …
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Ryan White is a JD/MPA candidate (2018) at Syracuse Law and the Maxwell School, a former clerk in the US Attorney’s Office, and a former intern at Homeland Security Investigations.