The 2016 Amendments to Criminal Rule 41: National Search Warrants to Seize Cyberspace, 'Particularly' Speaking
46 Pages Posted: 9 Mar 2019
Date Written: March 24, 2017
George Orwell‘s dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents—under a single warrant—to “remotely access,” and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device‘s location is obscured through “technological means,” or if agents are investigating computer crimes in five or more districts—regardless of whether the locations of the innumerable search targets are known. Absent clairvoyance, this begs the question of how Fourth Amendment warrant requirements are applied to such a sweeping search.
This comment examines this Fourth Amendment question through a close analysis of hacking technology and the government's technological response that has yet to appear before the U.S. Supreme Court. It concludes that the expanded jurisdiction of federal warrants under revised Rule 41 can function as a useful tool for combatting cybercrime and still satisfy the requirements of particularity and probable cause. However, to satisfy those constitutional requirements, magistrates must limit remote multi-computer searches to cases where it is likely that any targeted computer is participating in criminal activity. Magistrates will need to take particular care to limit searches that intrude on persons not involved in the unlawful activity that is the object of the search.
Part I provides a survey of encryption and anonymization technology universally employed by law-abiding citizens and criminals alike. Part II details how law enforcement has, and likely will, employ the techniques of computer hackers to circumvent these encryption technologies to conduct remote searches. Part III outlines a history of how the Rule 41 amendments were enacted. Part IV discusses the warrant for the largest hacking investigation and search in federal law enforcement history, Operation Pacifier. Included is an overview of federal court litigation that challenged the validity of the warrant, which may be appealed to the Supreme Court. Part V articulates and analyzes the “reasonable expectation” of privacy component in the Fourth Amendment as it relates to “remote access” searches. Part VI offers judges and defense counsel a constitutional framework of how to best assess probable cause and particularity in applications for remote access search warrants. Finally, Part VII concludes with an assessment and outlook on the use of remote searches and the need for judicial caution and attention to detail under the updated Rule 41.
Keywords: Fourth Amendment, warrant, Rule 41, hackers, dark web
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