February 26th, 2015

Department of Justice Warrant Requirement Proposed Amendment Concerning Electronic Surveillance in Anonymous Computer Sources Raises Serious Fourth Amendment Concerns

By: Breta Olsen




The DOJ has proposed an amendment to Rule 41 of Federal Criminal Procedure on a proposed amendment that would allow magistrate judges to issue search warrants outside of their jurisdiction that authorize the “use [of] remote access to search electronic storage media and to seize or copy electronically stored information” when the location of the computer source is unknown. According to the DOJ, this amendment will ensure that FBI searches of digital data do not have their warrants precluded due to lack of venue when technology is used to disguise a computer’s geographic location.

While the Department of Justice insists that this is a small tweak to an existing rule that does not expand the power of the FBI to search, organizations as varied as Google, the ACLU, Reporter Committee on Freedom of the Press and the Electronic Frontier Freedom all cautioned the Judicial Conference Advisory Committee on Criminal Rules to reject the proposal and advised that, if this change should be made, Congress is the appropriate venue rather than the rule-making process due to fourth amendment concerns.

According to the ACLU, the sample search warrants submitted to the committee indicate that the warrants would be used to implement network investigative techniques (NIT), which involves the hacking of a device and the installation of malware on the targeted computers. These searches may well constitute an unreasonable search under the fourth amendment given their destructive nature, unpredictability, and ability to affect countless non-targeted computers.

Google points out that the wording of the amendment is sufficiently vague to raise further fourth amendment concerns. For example, the sample warrants make no attempt to describe what “storage media” will be searched, giving seemingly unlimited access, which is disturbing because NIT makes it possible for the government to take control of targeted computers and access data stored locally, on a network drive, or in the cloud. This raises serious particularity concerns under the fourth amendment. With respect to the scope of the warrants, Google points out that there are no statements on the sample warrants about what type of “storage media” will be searched or how the government will avoid implicating non-targeted computers in the search as it tracks an anonymous actor. Finally, Google points out that NIT techniques have the ability to access a computer’s microphone and camera remotely. To the extent that any of these searches employ this method, and either activate these devices or collect information in real time from them, the heightened protections of Title III would apply, and the government has not addressed these concerns in their proposal.

Public comments before the Committee closed on February 17 and in the next few weeks, the Judicial Conference Advisory Committee on Criminal Rules will make a decision about the preliminary proposal.