DOJ Seeks Rule Change to Authorize Remote Hacking Searches

The Department of Justice is seeking approval for a change in the federal rule applicable to issuance of search warrants. DOJ wants U.S. Magistrate judges to be able, under Rule 41 of the Federal Rules of Criminal Procedure, to authorize computer searches even when they don't know the location of the computer or whether it's in that Magistrate's district. If the DOJ can access the computer remotely to search it, it doesn't want to be hamstrung by "technicalities" like which district the computer is in, or just as importantly, having to leave a physical notice at the site of the search.

The rule change has already passed its first hurdle and will come up again at a meeting of the committee later this month.

Here is the proposed new rule. Here are 5 pages from the 1100 page report describing the change and DOJ's justification for it (begins at bottom of first page). [More...]

I find the change on notice troubling. Here's how it is described in the report:

The rule now requires that notice of a physical search be provided “to the person from whom, or from whose premises, the property was taken” or left “at the place where the officer took the property.”

The Committee recognized that when a electronic search is conducted remotely, it is not feasible to provide notice in precisely the same manner as when tangible property has been removed from physical premises.

The proposal requires that when the search is by remote access, reasonable efforts be made to
provide notice to the person whose information was seized or whose property was searched.

Why this is referred to as hacking: The report says:

A warrant for a remote access search when a computer’s location is not known would enable
investigators to send an email, remotely install software on the device receiving the email, and
determine the true IP address or identifying information for that device.

... The proposed amendment would enable investigators to conduct a search and seize
electronically stored information by remotely installing software on a large number of affected
victim computers pursuant to one warrant issued by a single judge.

What is "reasonable notice?" Will they establish a website publishing notice of executions of search warrants for computers like they do for civil forfeitures? How will the computer be identified?

This seems destined to create a lot of litigation. The report says:

The proposed amendment does not address constitutional questions that may be raised by warrants for remote electronic searches, such as the specificity of description that the Fourth Amendment may require in a warrant for remotely searching electronic storage media or seizing or copying electronically stored information. The amendment leaves the application of this and other constitutional standards to ongoing case law development.

The ACLU wrote a 21 page letter outlining its concerns with the proposed rule change.

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