An advisory panel within the U.S. court system has recommended changes to procedural rules on the issuance of search warrants that would enable judges to approve more “remote access” searches of electronic media, prompting complaints that the changes would jeopardize privacy rights and that any such changes should be made by Congress, not a court advisory committee.
The Advisory Committee on the Rules of Criminal Procedure has recommended changing Federal Rule of Criminal Procedure 41, which currently prohibits a federal judge from issuing a search warrant outside the judge’s district, with some exceptions.
Under the proposed rule, a 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. Section 103(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.”
In a post on Google, Inc.’s public policy blog, Richard Salgado, the company’s legal director-law enforcement and information security, said the proposed change could have “profound implications for the privacy rights and security interests of everyone who uses the Internet.”
“First, in setting aside the traditional limits under Rule 41, the proposed amendment would likely end up being used by U.S. authorities to directly search computers and devices around the world,” Mr. Salgado wrote. “Even if the intent of the proposed change is to permit U.S. authorities to obtain a warrant to directly access and retrieve data only from computers and devices within the U.S., there is nothing in the proposed change to Rule 41 that would prevent access to computers and devices worldwide.”
Google is concerned that the proposed change to Rule 41 could undermine cooperation with authorities in other countries regarding cross-border investigations, Mr. Salgado wrote. “The significant foreign relations issues associated with the proposed change to Rule 41 should be addressed by Congress and the President, not the Advisory Committee,” he added.
In addition, the proposed change “threatens to undermine the privacy rights and computer security of Internet users,” Mr. Salgado added. The change would “excuse territorial limits on the use of warrants to conduct ‘remote access’ searches where the physical location of the media is ‘concealed through technological means,'” he said.
“The proposed change does not define what a ‘remote search’ is or under what circumstances and conditions a remote search can be undertaken; it merely assumes such searches, whatever they may be, are constitutional and otherwise legal,” Mr. Salgado wrote. “It carries with it the specter of government hacking without any Congressional debate or democratic policymaking process.”
The proposed change “seemingly means that the limit on warrants is excused in any instance where a Virtual Private Network (VPN) is set up,” Mr. Salgado added. “Banks, online retailers, communications providers and other businesses around the world commonly use VPNs to help keep their networks and users’ information secure. A VPN can obscure the actual location of a network, however, and thus could be subject to a remote search warrant where it would not have been otherwise.”
In comments filed on the proposal, the Pennsylvania Bar Association said the proposed amendments to Rule 41 would “substantively expand the government’s investigative powers, which should be addressed by Congress in the first instance. “Specifically, the proposed amendment confers authority upon a magistrate judge to authorize a category of searches that the government is currently barred from conducting,” the PBA wrote. “Congress has provided a legislative solution when necessary, and congressional action lends itself to substantive limits on questionable search practices in a way that rulemaking does not.” – Brian Hammond, email@example.com