The Department of Justice has been working to revise a federal criminal procedure rule to make it easier for judges to issue search warrants outside of their geographic districts of influence. The idea is to facilitate remote FBI searches of digital data. But Google and other groups have constitutional concerns.
The proposal to a judicial advisory committee has been in an open comment period that ended Tuesday. On Friday, Richard Salgado, Google’s director of law enforcement and information security, submitted a letter detailing Google’s concerns. He writes that the change could have much bigger “constitutional, legal, and geopolitical concerns” than the DoJ is acknowledging.
The proposed change is in Rule 41 of the federal rules of criminal procedure, which details geographic constraints on the areas where judges are allowed to approve search warrants. The DoJ wants judges to be able to issue warrants even if the source of a botnet or other anonymous action is unknown. In its response to public comments, the DoJ writes:
The existing rules already allow the government to obtain and execute such warrants when the district of the targeted computer is known. Thus, the issue before the Committee is not whether to allow warrants to be executed by remote search; it is whether such warrants should ... be precluded in cases involving anonymizing technology due to lack of a clearly authorized venue to consider warrant applications.
But Google says that the proposal is too broad and could have unintended, problematic impacts. It adds that if such a change is to be enacted, it should come through Congress, not a DoJ proposal to a judicial advisory committee. Salgado notes, “While the proposed ammendment ‘purports’ not to substantively expand the government’s search powers under Rule 41, it in effect does so anyway. ... The proposed amendment is a substantive change that imposes upon the constitutional rights of targets. ...”
Salgado also points out that the changes could easily lead to remote search of computers outside the United States or in places where U.S. law enforcement does not have jurisdiction. He adds that millions of Americans with computers impacted by cybercrime could have to endure digital searches as law enforcement attempts to track an anonymous actor.
The National Journal notes that Amie Stepanovich, the senior policy counsel for digital rights group Access, said at a proposal review meeting in November, “I empathize that it is very hard to get a legislative change, however; when you have us resorting to Congress to get increased privacy protections, we would also like to see the government turn to Congress to get increased surveillance authority.”
In addition to Google’s letter, there were more than 30 others submitted during the open-comment period by groups like the the ACLU, Electronic Frontier Foundation, and Reporters Committee for Freedom of the Press. The judicial advisory committee will make a decision about the proposal in the next few months, at which point it will be reviewed by other groups including the Supreme Court and Congress. Congress has seven months to address the proposal, but if it doesn’t, the revision will automatically go through.