Rule 41 Change Could Allow FBI To Get Warrants To Remotely Search Suspects' Computers Without Notice

The Department of Justice recently edged closer to a rule change that would allow the FBI to track suspected criminals' computer activity more easily. The Judicial Conference Advisory Committee on Criminal Rules voted last week in favor of an update to Rule 41, which dictates how judges can issue search warrants on electronic devices, Government Executive reported. The new rule 41 would let judges OK warrants to examine computers remotely anywhere as opposed to only those in their districts. The FBI would also no longer would be required to give users notice ahead of its searches.

"The rule itself would be an acknowledgement that remote access searches are valid without notice, without special justification," Electronic Privacy Information Center general counsel Alan Butler told Gizmodo. "Notice is one of the essential procedural protections of the Fourth Amendment. Validating a rule that implies that notice will never happen does not comport with the Fourth Amendment."

The Fourth Amendment forbids unreasonable searches and seizures.

The FBI has requested the rule change to better function in the 21st-century world of technology, DefenseOne reported. The agency would have more options, like the authority to secretly install tracking software on the computers of alleged criminals.

Privacy groups are opposed to this. Google came out against the Rule 41 change last week, arguing it “raises a number of monumental and highly complex constitutional, legal and geopolitical concerns that should be left to Congress to decide.” The Department of Justice fired back, saying the amendment had been misread and “would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law.”

In any event, the proposal will next go before the Standing Committee on Rules of Practice and Procedure, then the Supreme Court. If approved, Gizmodo reported, Rule 41 could be updated by December 2016.