proposed amendments to Rule 41

The U.S. Judicial Conference recently received public comments on proposed amendments to Federal Rule of Criminal Procedure 41 (the “Rule”), which would enlarge DOJ’s ability to remotely access, search, and seize electronically stored information (“ESI”).  Under the current Rule, a magistrate judge’s authority to issue warrants is limited to persons or property located within the district where the court sits, with few narrow exceptions.  Given the Rule’s territorial limit, DOJ has faced barriers in investigating and prosecuting Internet-based crimes where the computer’s location was unknown because of anonymizing tools, or where media and ESI were located in multiple districts or in the Cloud.

Under the proposed Rule, a magistrate judge would be authorized to issue warrants permitting the government to “use remote access to search electronic storage media and seize or copy electronically stored information located within or outside” the district where the court sits, in two possible scenarios.  One of these scenarios is DOJ investigations under the Computer Fraud and Abuse Act where the media to be searched are computers protected under the statute that are located in five or more districts.  The second scenario is where the location of the media or information has been “concealed through technological means.”  In these scenarios, the proposed Rule would allow the government to obtain warrants authorizing it to hack into computers and access ESI saved virtually anywhere in the United States, including in the Cloud.Continue Reading Expanded warrants to let DOJ remotely search and seize electronically stored information saved anywhere?