Rule 41 Amendments– Why There’s No Reason to Panic

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.

untitled


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.

Share:

Tags: , , ,

One Response to “Rule 41 Amendments– Why There’s No Reason to Panic”

  1. […] Over the past several weeks, this site has commented on the extensive debate over proposed amendments to Rule 41 of the Federal Rules of Criminal Procedure.  A summary of the changes and commentary can be found here. […]

Authors

Untitled Document
Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

Categories