Tor no more? Supreme Court approves new exception to warrant rule

Opinion by Shannon Grammel
May 5, 2016, 11:59 p.m.

Although the Supreme Court gets the most coverage when it decides big cases with far-reaching effects, it also engages in many under-the-radar judicial activities that – though mostly ministerial – can sometimes substantially alter individual rights and the legal landscape. Last week, the Court engaged in one of these activities: amending the Federal Rules of Criminal Procedure. While the Court did approve some pretty arcane changes, it also approved an amendment that has the potential to radically increase the government’s ability to engage in searches of electronic devices and documents.

By way of a quick background, the Federal Rules of Criminal Procedure govern all prosecutions undertaken in America’s federal courts. They set the rules for every stage of the criminal process – warrants, pleas, trials, sentencing, and beyond. Rule 41, which deals with the procedures police must follow to obtain a warrant, provides that, with certain limited exceptions, “a magistrate judge …  has the authority to issue a warrant to search for and seize a person or property located within the district” in which the judge sits.

One of the amendments the Supreme Court approved last week adds a significant new exception to Rule 41: magistrates may now “issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information” located outside the district in which the magistrate sits if: (1) “the district where the media or information is located has been concealed through technological means” or (2) if the crime involves damage to certain governmental, bank, or other computers that are “protected … [and] that have been damaged without authorization and are located in five or more districts.” These changes will, unless Congress stops them – which seems unlikely during a heated election year – go into effect on December 1 of this year.

Put simply, this amendment allows law enforcement to do two new things. First, when it is unclear where electronic information is being stored (if, for example, individuals are storing information in the cloud or are using anonymizing software to conceal the physical location of their computers), a magistrate anywhere in the country may issue a warrant allowing investigators to use remote-access techniques to search the information. Second, when the crime in question involves damaging governmental, bank, or other computers and those computers are located in five or more judicial districts, the government can get a single warrant from any magistrate allowing them to remotely access all of the affected computers.

A recent example illustrates the potential impact of these changes. About a year ago, the government obtained a warrant from a judge in Virginia that allowed it to hack the computers of all visitors (many of whom were anonymized) to a website that distributed child pornography. In the past few weeks, two defendants in cases stemming from these hacks have successfully had this warrant ruled invalid under the current Rule 41 because the computers were never physically located in the Virginia district where the issuing judge sits. Under the revised Rule 41, however, the warrant would have been fine. Because the users were anonymized, the Virginia magistrate would have been allowed to authorize hacking of all of their computers regardless of their locations.

In addition to the obvious fundamental privacy concerns such broad-reaching investigatory techniques raise, the recent changes to Rule 41 have been widely criticized for the detrimental effect they could have in foreign relations. As many scholars have pointed out, the potential scope of the new Rule 41 is very broad – it authorizes remote searches not only within the United States but also internationally. Surveillance expert and law professor Ahmed Ghappour has cautioned that this expansion of America’s law enforcement power could significantly impact America’s relationships abroad – especially given recent international tension about American surveillance. Google raised the same concerns in a comment  on the proposed amendments, noting that they raise “complex … geopolitical concerns.

Although these changes stand to substantially impact individual rights and may significantly affect American foreign policy, they are set to go into effect without ever being passed by Congress or signed by the President. Indeed, because they are codified as “procedural” rules, they get to bypass the political process entirely under a law called the Rules Enabling Act. This law lets the judicial branch alone promulgate the Federal Rules of Criminal (and Civil) Procedure. Indeed, last week’s amendments were requested by the Department of Justice; written by a group of federal judges, government representatives, lawyers and scholars; and approved by the Supreme Court. Congress played no part in this process.

Aside from concerns about the substantive content of the changed rules, the fact that such major changes can be implemented without going through the ordinary political process worries many commentators. According to the Rules Enabling Act, the Supreme Court may only use the power it derives from that law to enact “procedural” rules. It is still up to Congress to enact “substantive” rules. In this case, the distinction is not so clear, despite the fact that the amendments to Rule 41 appear in the rules of “Criminal Procedure.”

Moreover, according to one Hill aide, “most offices are unfamiliar with the Rule 41 amendments.” As a result, not only do these changes blur the line between substantive and procedural rules, but it also seems unlikely that they will get much attention in Congress, the sole body charged reviewing them and (if it deems appropriate) stopping them from taking effect.

This reality – and the lack of real media coverage of last week’s changes to Rule 41 – should serve as a useful reminder to all of us that not all important decisions receive the attention they deserve.  In short, stay woke.


Contact Sean Janda at jandas ‘at’ and Shannon Grammel at sgrammel ‘at’ 


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