SurveillanceJustice Department takes first step toward expansion of search warrants’ reach

The Justice Departmenthas taken a first step toward allowing judges to grant warrants for remote searches of computers located outside their district, or when the location is unknown. On Monday, the Judicial Conference Advisory Committee on Criminal Rules approved an amendment to Rule 41 by an 11-1 vote. The existing provision allows judges to approve search warrants only for material within the geographic bounds of their judicial district, but the FBI has said it needs the rule updated to address the increasingly complex digital realities of modern day.

If the new provision is authorized, the FBI would find it easier to infiltrate domestic and foreign computer networks to better monitor suspected criminals who conceal their identities on the Web, the agency said.

Defense One reports that privacy advocates oppose the plan, with the American Civil Liberties Union (ACLU) saying such a change could weaken the Fourth Amendment’s protections against unreasonable search and seizures. Googlewarned last month that the change “substantively expands the government’s current authority under Rule 41 and raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns that should be left to Congress to decide.”

Deputy Assistant Attorney General David Bitkower responding to Google and others concerned with privacy wrote, “The criticisms appear to misunderstand what is at stake in the proposal.” He added that “As the department has repeatedly emphasized, the proposal would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law.”

Monday’s vote is the first of several approvals required within the Justice Department before the rule change can formally take place. The proposal is now subject to review by the Standing Committee on Rules of Practice and Procedure, which could approve it at its June meeting. Next the Judicial Conference will decide whether to approve the amendment, a move that could take place in September. The Supreme Court will then have until 1 May 2016 to review and accept the amendment, followed by a Congressional review of up to seven months in which lawmakers can reject, modify, or deter the amendment. If all parties approve, the amendment will become effective 1 December 2016.

Privacy groups will continue to fight the proposal as it makes its way through upcoming review sessions. “Although presented as a minor procedural update, the proposal threatens to expand the government’s ability to use malware and so-called ‘zero-day exploits’ without imposing necessary protections,” wrote ACLU attorney Nathan Freed Wessler in a statement. “The current proposal fails to strike the right balance between safeguarding privacy and Internet security and allowing the government to investigate crimes.”