W ith the Rules Enabling Act, Congress granted to the Supreme Court the authority to write federal rules of procedure, including the rules of criminal procedure. After several years of evaluation by the Judicial Conference, the policy-making arm of the federal judiciary, on April 28, 2016, the Supreme Court transmitted to Congress proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. These proposed changes would amend the federal search and seizure rules to permit the government to remotely access electronic devices although the location of the device may be unknown. This issue has become more pressing in recent years with an increasing number of users anonymizing their communications, hindering the government's ability to pinpoint the location of the target, and thus making it difficult to discern the appropriate federal court to apply for a search warrant. In recent years, a tension has arisen between Rule 41 as currently drafted and the Department of Justice's (DOJ's) desired use of the rule for digital searches. One facet of this problem arose in a 2013 magistrate judge's ruling from the Southern District of Texas, in which the court denied DOJ's application to conduct remote searches of a computer believed to have been part of a fraudulent scheme. The court declined to grant the DOJ's application because the government could not establish the location of the target, thereby placing the proposed search outside the scope of Rule 41 and in violation of the Fourth Amendment particularity requirement. There have been at least two lines of argument against the proposed rule change, one based on the substance of the proposed amendment and the other grounded in the process by which the rule is being changed. The substantive arguments pertain to the actual substance of the rule and include for example, an argument that the new rule would breach the particularity requirement of the Fourth Amendment. The procedural arguments concern how this potential authorization should be made law: through the rulemaking process by the courts or through enacted legislation by Congress. While federal law enforcement has been supportive of the proposed rule change, some advocacy groups have argued that the proposed change "would have significant legal and technical implications" and thus "merit[s] open consideration by Congress, rather than a rulemaking proceeding of the Judicial Conference." This report provides a brief overview of the proposed amendment to Rule 41. First, it sets out background on the origin of, and rationale underlying, the proposed amendment and a description of the rule as currently written. Second, it reviews the potential changes made by the proposed amendment and surveys various concerns commenters have raised with the proposal.
With the Rules Enabling Act, Congress granted to the Supreme Court the authority to write federal rules of procedure, including the rules of criminal procedure. After several years of evaluation by the Judicial Conference, the policy-making arm of the federal judiciary, on April 28, 2016, the Supreme Court transmitted to Congress proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. These proposed changes would amend the federal search and seizure rules in two ways. First, they would permit the government to remotely access electronic devices although the location of the device may be unknown. This issue has become more pressing in recent years with an increasing number of users anonymizing their communications, hindering the government's ability to pinpoint the location of the target, and thus making it difficult to discern the appropriate federal court to apply for a search warrant. Second, they would permit DOJ to search multiple computers in numerous districts as part of a large-scale investigation of computer crimes.
In recent years, a tension has arisen between Rule 41 as currently drafted and the Department of Justice's (DOJ's) desired use of the rule for digital searches. One facet of this problem arose in a 2013 magistrate judge's ruling from the Southern District of Texas, in which the court denied DOJ's application to conduct remote searches of a computer believed to have been part of a fraudulent scheme. The court declined to grant the DOJ's application because the government could not establish the location of the target, thereby placing the proposed search outside the scope of Rule 41 and in violation of the Fourth Amendment particularity requirement.
There have been at least two lines of argument against the proposed rule change, one based on the substance of the proposed amendment and the other grounded in the process by which the rule is being changed. The substantive arguments pertain to the actual substance of the rule and include, for example, an argument that the new rule would breach the particularity requirement of the Fourth Amendment. The procedural arguments pertain to how this potential authorization should be made law: through the rulemaking process by the courts or through enacted legislation by Congress. While federal law enforcement has been supportive of the proposed change, some advocacy groups have argued that the proposed rule change "would have significant legal and technical implications" and thus "merit[s] open consideration by Congress, rather than a rulemaking proceeding of the Judicial Conference."
This report provides a brief overview of the proposed amendment to Rule 41. First, it provides background on the origin of, and rationale underlying, the proposed amendment and a description of the rule as currently written. Second, it reviews the potential changes made by the proposed amendment and surveys various concerns commenters have raised with the proposal.