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?

The U.S. Supreme Court is set to decide the circumstances in which police may constitutionally search an arrestee’s cell phone without a warrant. On April 29, 2014, the Court heard arguments in two companion cases—Riley v. California and United States v. Wuriewhich occasion the Court to define the scope of the Fourth Amendment in the digital age and strike a balance between an individual’s interest in the privacy of his cell phone contents and law enforcement’s interests in police safety and preservation of evidence. In Riley, police seized David Leon Riley’s smart phone during a traffic stop for an expired licensed plate. Using photos, videos, and call logs obtained through a warrantless search of his phone, along with two hand guns found during a search of his car, police identified Riley as a member of a gang and placed him near the scene of a gang-related shooting that occurred a couple of weeks before his arrest. At trial, although no witness positively identified Riley as a participant in the shooting, the circumstantial evidence from the phone gave the jury enough evidence to convict him of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. In Wurie, police arrested Brima Wurie near the scene of a drug transaction and took him to the police station. While there, police seized two cell phones from Wurie. Police observed that one of the cell phones—a flip phone—was repeatedly receiving calls from “my house.” Without a warrant, the officers flipped open the phone, reviewed the call log, and traced the phone number to Wurie’s apartment. Police obtained a warrant to search Wurie’s apartment, where they found crack, marijuana, and other evidence of a drug crime. Wurie was convicted of distribution and possession with intent to distribute crack, and being a felon in possession of a firearm and ammunition. 
Continue Reading SCOTUS Hears Arguments in Warrantless Cell Phone Search Cases