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Amended Rule 41 gives federal agents greater means to search for evidence online

Cattanach

By Steve Bittenbender
Editor, Government Security News

As December begins, so, too, does a new federal rule that allows government agents to access remotely an individual’s computer or mobile device to find out where a crime may have taken place.

Earlier this year, an advisory committee proposed changes to Rule 41, which details the process of how a federal law enforcement officer can seize property or other material under a warrant. The amendments, drafted after three years of consideration, give greater flexibility to agents in searching for evidence on smartphones, laptops or storage devices.

Justice Department officials say the amendments will help them build stronger cases against perpetrators, including those who sexually exploit children, who try to conceal their location.

“We believe technology should not create a lawless zone merely because a procedural rule has not kept up with the times… The amendments do not create any new law enforcement authority, or make any change to what constitutes a crime or what must be shown to a court in order to investigate crime. Nor do they change in any way the traditional protections under the Fourth Amendment, such as the requirement that investigators establish probable cause before each search,” said Leslie Caldwell, an assistant U.S. attorney general.

The Supreme Court adopted the panel’s recommendations earlier this year, although Congress had the ability to revise or block them. That window closed on Wednesday, but not without one final attempt by a bipartisan group of senators.

Sens. Ron Wyden, Chris Coons and Steve Daines sought votes on three bills that would have at least delayed the amendments. However, those efforts were blocked by Senate leaders. The three previously called for hearings to learn more about the changes, but no hearings ever took place.

Daines, a Montana Republican, expressed concern about giving the government greater power that could infringe upon civil liberties. Wyden, a Democrat from Oregon, said he fears a government agent could use malware to gain access to computer and that hack could have unintended consequences.

“Law-abiding Americans are going to ask ‘What were you guys thinking?’ when the FBI starts hacking victims of a botnet hack,” he said. “Or when a mass hack goes awry and breaks their device, or an entire hospital system and puts lives at risk.”

Coons, a Democrat from Delaware, said he didn’t consider the amendments either good or bad, but he expressed concerns about individuals’ privacy.

“That’s why I joined my colleagues from both sides of the aisle today in calling for prompt passage of our legislation to delay implementation of the changes for six months,” Coons said. “It is our responsibility to do our jobs and thoroughly evaluate the merits and ramifications of the proposed changes.”

Robert Cattanach, a former trial attorney for the Justice Department who now handles cybersecurity cases in private practice, said that some fear an innocent bystander could have their device or system searched while agents try to locate the criminal activity.

However, he said the amendment is needed because hackers and child pornographers often elude capture because of their ability to hack into others’ systems. That makes it difficult for agents to determine the exact location of where the criminal activity took place. Justice Department officials noted that judges opted to suppress evidence in some cases because of what they considered the lack of a clear location.

“The new Rule will provide a more efficient process for obtaining warrants to search computers being used to commit crimes, even though the actual owners may not be guilty of any wrongdoing, and are not even be aware of the fact that they are surreptitiously being used for illegal purposes,” said Cattanach, a partner with the international law firm Dorsey & Whitney. “It is not unlike a warrant to allow a search of property owned by an innocent bystander, but which is secretly being used by others to commit crimes.”

 

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