The Hill: DOJ Defends New Warrant Rule for Computer Searches

The Department of Justice is defending controversial changes to the rule of evidence that would allow officials to search computers that are masking their location.

In an agency blog post, Assistant Attorney General Leslie R. Caldwell argues that updates to Rule 41 of the federal rules of criminal procedure are necessary to keep pace with changing technology. 

“While most changes were for the better, some technologies enable new forms of crime and victimization that would have been difficult to imagine not that long ago,” she writes. 

Updates to Rule 41 were approved by the Supreme Court and, without congressional action, will take effect in December. 

The new rules would give law enforcement leeway to request a warrant to search a computer using hacking techniques when the computer hides its physical location. Otherwise, to get a warrant, officials would need to go to the jurisdiction housing the computer, which can be difficult if not impossible in many cases.

“This outcome would be merely nonsensical if the consequences were not so serious. Despite being prepared to comply fully with the Fourth Amendment’s warrant requirements, including persuading a federal judge that a lawful basis for a warrant exists, investigators are being told that, because criminals have successfully used technology to hide their location, there is no court available to hear their warrant application,” writes Caldwell. 

The new rules would also allow law enforcement to get a single warrant to breach five or more systems — useful in fighting networks of hacked computers that can be used to bulk email spam or flood targets with so much internet traffic that they crash. That type of attack briefly knocked major sites like Twitter and The New York Times offline in October.

Computer rights and civil liberties advocates argue that both new provisions unduly expand the rights of the government to hack computers and are written too vaguely.

Last week, a bipartisan group of legislators from both chambers of Congress introduced legislation to delay the start of the new rules until July to allow more time to review the effects of the change. 

“We cannot give the federal government a blank check to infringe on Americans’ civil liberties,” said Sen. Steve Daines (R-Mont.) in a press release announcing the bill, which he joined in introducing.