Review the Rule Act would delay SCOTUS proposed changes to Rule 41 on warrants for electronic searches

By Steve Brachmann
November 30, 2016

Capitol buildingOn November 17th, the Review the Rule Act of 2016 was introduced into the U.S. Senate by Sen. Chris Coons (D-DE) along with co-sponsors Sens. Steve Daines (R-MT), Ron Wyden (D-OR), Mike Lee (R-UT), Al Franken (D-MN), Tammy Baldwin (D-WI) and Rand Paul (R-KY). If passed, the bill would delay amendments to Federal Rule of Criminal Procedure 41 set to go into effect on December 1st. A sister bill has already been introduced into the U.S. House of Representatives, sponsored by Congressmen Ted Poe (R-TX) and John Conyers (D-MI).

The proposed changes to Federal Rule of Criminal Procedure 41, which governs the process for legal searches and seizures of criminal evidence, contraband and criminal suspects, were proposed to both houses of Congress this April by the U.S. Supreme Court in a letter to both houses of Congress from Chief Justice John Roberts. The changes to Rule 41 would give a magistrate judge in a district where activities related to a crime may have occurred the authority to issue a warrant to remotely access electronic storage media to copy electronic records even if the electronic storage media may be outside of the judge’s district. The rule change would allow warrants to be issued on electronically stored data if the location of the data medium is obscured through technological means or in investigations of computer fraud where data storage media is located in five or more districts. Rule changes also affect how warrants are served to people whose electronic records are seized, charging warrant officials to make reasonable efforts to serve a warrant to a person “including electronic means, reasonably calculated to reach that person.”

Both the tech community and civil liberties groups are very resistant to this change in legal policy. On November 21st, a letter signed by 26 organizations and addressed to major party leadership in both houses of Congress urged them to delay adoption of changes to Rule 41 until July 2017, which is when the rules change would be adopted if the Review the Rule Act is signed into law. The coalition behind the letter includes both the American Civil Liberties Union (ACLU) and major tech firm Google. The groups are concerned that the proposed changes to Rule 41 would be deleterious to privacy rights regarding search and seizure which are protected by the Fourth Amendment.

According to a report released this September by the Congressional Research Service (CRS), the current movement to amend Federal Rule of Criminal Procedure 41 goes back to issues the U.S. Department of Justice (DOJ) has had in recent years in obtaining search warrants on electronic records for certain cases. In 2013, for instance, DOJ was frustrated in a case tried in the U.S. District Court for the Southern District of Texas (S.D. Tex.) where the court turned down DOJ’s request to conduct remote searches of a computer because the location of the target computer could not be established.

Arguments from proponents for the Fourth Amendment focus on the fact that the proposed changes to Rule 41 run afoul of the particularity requirement of that amendment, which requires that warrants shall particularly describe the things to be seized instead of making a general search. Under the new Rule 41, some groups have worried that the government could search, without probable cause, the computer records of those unwittingly affected by malware. Others have taken issue with the procedure by which the rule change is taking place. The Supreme Court is able to propose the rule changes under the terms of the Rules Enabling Act of 1934, which gives SCOTUS the power to make rules of procedure and evidence for federal courts as long as those rules don’t abridge or modify any substantive right. Given the Fourth Amendment concerns, there are those who believe that the rule change should be made through open consideration by Congress rather than through procedural rulemaking.

“The proposed changes are serious, and present significant privacy concerns that warrant careful consideration and debate,” Sen. Coons is quoted as saying in a press release announcing the introduction of the Review the Rule Act. “Our bicameral, bipartisan legislation will give Congress time to do our job and carefully consider and evaluate the merits of these proposed changes to the government’s ability to search personal computers and other digital devices. It is essential that these rules strike a careful balance: giving law enforcement the tools it needs to keep us safe, while also protecting Americans’ constitutional rights to privacy and freedom from unreasonable searches.”

The deadline on the changes to Rule 41 is fast approaching, but the bipartisan support for the Review the Rule Act could give this bill momentum even in a stagnating Congress. “We cannot give the federal government a blank check to infringe on Americans’ civil liberties,” as Sen. Daines is quoted. “Congress needs the appropriate time to investigate the implications of this rule on Americans’ Fourth Amendment rights.” Sen. Lee voiced his own opinions that a single prosecutor should not have the power to hack virtually any phone or device in the U.S. “Yes, federal law enforcement does need new tools to stop and prosecute botnets, but the proposed Rule 41 rule change goes to far,” Lee said. “The sensible thing to do is delay the implementation of this rule and allow Congress to investigate further.”

After its introduction, the Review the Rule Act was referred to the U.S. Senate Committee on the Judiciary. However, as of noon on Tuesday, November 29th, there was no hearing scheduled by the Senate’s judiciary committee to discuss the bill for any markups. The bill itself is remarkably short and narrowly targeted, however, so it could find quick support across the board if the Fourth Amendment privacy argument holds sway with enough members of Capitol Hill. The CRS has also identified a bill related to the Review the Rule Act. This May, the Stop Mass Hacking Act was introduced into both houses of Congress; the Senate version includes Sens. Wyden, Paul, Baldwin and Daines as co-sponsors along with Sen. Jon Tester (D-MT). This bill was also targeted at delaying changes to Rule 41 although it appears to have languished without action after being referred to the Senate’s judiciary committee, so it seems likely that that inaction on Capitol Hill could very well lead to the DOJ and SCOTUS earning a win in this case.

The Author

Steve Brachmann

Steve Brachmann is a freelance journalist located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He writes about technology and innovation. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients and is available for research projects and freelance work.

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