Proposed Changes to Search Warrant Procedures Could Lead to ‘Government Hacking of Any Facility’

Google issued its strong opposition to the government’s proposed amendment to search and seizure procedures this week, writing that it fears the changes could lead to “government hacking of any facility.”

Photo credit: Shutterstock
Photo credit: Shutterstock

The proposed changes to the Federal Rule of Criminal Procedure 41 — the rule that governs search and seizure — were issued last year by the Advisory Committee on the Rules of Criminal Procedure at the request of the U.S. Department of Justice. The changes could expand the government’s ability to obtain digital information.

In its response to the government’s request for public comments on the proposed amendment this week, Google “[urged] the Committee to reject the proposed amendment and leave the expansion of the government’s investigative and technological tools, if any are necessary or appropriate, to Congress.”

The proposed changes would allow courts in any districts, not just those where the possible criminal activity occurred, to issue a warrant for law enforcement to obtain digital data. Google specifically took issue with that it would allow the government remote searches of electronic data if its location has been “concealed through technological means.”

To Google, this means that remote searches could “take place anywhere in the world,” which it noted would violate the “extraterritorial limitations of Rule 41.”

“[…] the nature of today’s technology is such that warrants issued under the proposed amendment will in many cases end up authorizing the government to conduct searches outside the United States.”

Google is not the only one opposing the proposed amendments either. Last fall, the American Civil Liberties Union gave its perspective:

The ACLU recommends that the Committee reject the proposed amendment to Rule 41. The proposed amendment raises myriad technological, policy, and constitutional concerns. Some of those might be addressed through careful regulation; others are inherent in even the most circumscribed versions of the proposal. The dramatic expansion of investigative power that the government seeks should not be authorized through a change to the Rules of Procedure. Rather, if the government wants this power, it should seek congressional action.

“[T]he proposed change threatens to undermine the privacy rights and computer security of Internet users,” Richard Salgado, Google’s legal director, wrote on its Public Policy Blog this week. “For example, the change would excuse territorial limits on the use of warrants to conduct ‘remote access’ searches where the physical location of the media is ‘concealed through technological means.’  The proposed change does not define what a ‘remote search’ is or under what circumstances and conditions a remote search can be undertaken; it merely assumes such searches, whatever they may be, are constitutional and otherwise legal.  It carries with it the specter of government hacking without any Congressional debate or democratic policymaking process.”

Salgado continued that he feared proposed changes to the rule would also override previous limits on a Virtual Private Network.

“Banks, online retailers, communications providers and other businesses around the world commonly use VPNs to help keep their networks and users’ information secure. A VPN can obscure the actual location of a network, however, and thus could be subject to a remote search warrant where it would not have been otherwise,” Salgado wrote.

As the U.K.’s the Guardian pointed out, federal law enforcement is seeking such changes to search and seizure procedures, in part, because of advances in encryption technologies.

“[E]ncryption threatens to lead us all to a very, very dark place,” FBI Director James Comey said last year, according to the Guardian.

“Have we become so mistrustful of government and law enforcement in particular that we are willing to let bad guys walk away, willing to leave victims in search of justice?” he added.