Digital Searches and Seizures: Overview of
Proposed Amendments to Rule 41 of the Rules
of Criminal Procedure
Richard M. Thompson II
Legislative Attorney
June 29, 2016
Congressional Research Service
7-5700
www.crs.gov
R44547
Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
Contents
Background on Amendment to Rule 41 .................................................................................... 2
Current Version of Rule 41 ................................................................................................. 2
Amendment Process............................................................................................................ 3
Proposed Amendment ............................................................................................................... 3
Searches of Devices with Unknown Locations................................................................... 3
Multi-device, Multi-district Searches ................................................................................. 4
Issues Raised by Proposed Amendment to Rule 41 .................................................................. 4
Rationale for Amendment ................................................................................................... 4
Particularity of Search......................................................................................................... 5
Surreptitious Entry, Destructive Searches ........................................................................... 5
Notice .................................................................................................................................. 6
Impediments to Judicial Review ......................................................................................... 7
Forum Shopping ................................................................................................................. 7
Process Concerns ................................................................................................................ 7
Congressional Action ................................................................................................................ 8
Appendixes
Appendix. Text of Proposed Amendment to Rule 41 ...................................................................... 9
Contacts
Author Contact Information ............................................................................................................ 9
Congressional Research Service
Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
With the Rules Enabling Act,1 Congress granted to the Supreme Court the authority to write
federal rules of procedure, including the rules of criminal procedure. After several years of
evaluation by the Judicial Conference, the policy-making arm of the federal judiciary,2 on April
28, 2016, the Supreme Court transmitted to Congress proposed changes to Rule 41 of the Federal
Rules of Criminal Procedure.3 These proposed changes would amend the federal search and
seizure rules to permit the government to remotely access electronic devices although the location
of the device may be unknown. This issue has become more pressing in recent years with an
increasing number of users anonymizing their communications, hindering the government’s
ability to pinpoint the location of the target, and thus making it difficult to discern the appropriate
federal court to apply for a search warrant.4
In recent years, a tension has arisen between Rule 41 as currently drafted and the Department of
Justice’s (DOJ’s) desired use of the rule for digital searches. This issue arose recently in a 2012
magistrate judge’s ruling from the Southern District of Texas, in which the court denied DOJ’s
application to conduct remote searches of a computer believed to have been part of a fraudulent
scheme, because the government could not establish the location of the target, thereby placing it
outside the scope of Rule 41 and in violation of the Fourth Amendment particularity
requirement.5
There have been at least two lines of argument against the proposed rule change, one based on the
substance of the proposed amendment and the other grounded in the process by which the rule is
being changed. The substantive arguments pertain to the actual substance of the rule and include
for example, an argument that the new rule would breach the particularity requirement of the
Fourth Amendment.6 The procedural arguments pertain to how this potential authorization should
be made law: through the rulemaking process by the courts or through enacted legislation by
Congress.7 While federal law enforcement has been supportive of the proposed change,8 some
advocacy groups have argued that the proposed rule change “would have significant legal and
technical implications” and thus “merit[s] open consideration by Congress, rather than a
rulemaking proceeding of the Judicial Conference.”9
1
See 28 U.S.C. §§ 2071-77.
See 28 U.S.C. § 331 (“The Conference shall also carry on a continuous study of the operation and effect of the general
rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the
United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to
promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of
unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for
its consideration and adoption, modification or rejection, in accordance with law.”).
3
See Rules Package in Support of Amendments to Federal Rules of Procedure 201 (Apr. 28, 2016), available at
http://www.uscourts.gov/file/document/2016-04-28-final-package-congress [hereinafter Rules Package].
4
See DOJ Memorandum to Members of Criminal Rules Advisory Committee (March 17, 2014), in Advisory
Committee on Criminal Rules, Agenda Book April 7-8, 2014 (April 2014), available at http://www.uscourts.gov/rulespolicies/archives/agenda-books/advisory-committee-rules-criminal-procedure-april-2014 [hereinafter Agenda Book,
April 7-8].
5
In re Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp. 2d 753, 759 (S.D. Tex. 2013).
6
See Particularity of Search, infra p. 4.
7
See Process Concerns, infra p. 7.
8
See Rationale for Amendment, supra pp. 4-5.
9
Written Statement, Center for Democracy and Technology, Before the Judicial Conference Advisory Committee on
Rules (Oct. 24, 2014), available at https://www.regulations.gov/document?D=USC-RULES-CR-2014-0004-0009
[hereinafter CDT, Written Statement].
2
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
This report provides a brief overview of the proposed amendment to Rule 41. First, it provides a
background on the origin of, and rationale underlying, the proposed amendment and a description
of the rule as currently written. Second, it reviews the potential changes made by the proposed
amendment and will survey various concerns commenters have raised with the proposal. Lastly,
this report addresses efforts being made in Congress to alter, delay, or stop this rule change.
Background on Amendment to Rule 41
Current Version of Rule 41
Rule 41 of the Rules of Criminal Procedure governs the procedures for obtaining a search warrant
in federal court.10 Among other elements, it requires a government official to demonstrate
probable cause that evidence of a crime will be found in the place to be searched.11 As to the
question of venue—that is, which is the appropriate federal district court to seek a search
warrant—Rule 41 provides that a search warrant may be issued by “a magistrate judge with
authority in the district.”12 Rule 41 permits the issuance of extraterritorial warrants (warrants to
be served outside of that judge’s jurisdiction) in four limited instances: (1) the property is within
the jurisdiction but may be moved out of the jurisdiction before the warrant is executed; (2) the
property is part of an investigation of domestic or international terrorism; (3) tracking devices are
used which can be monitored outside the jurisdiction if installed within the jurisdiction; or (4) the
property is located in a U.S. territory or U.S. diplomatic or consular mission.13 However, based on
the text of the rule, none of these exceptions appear to permit searches where the location of the
target is unknown, such that it is not clear in which jurisdiction to request a warrant.
In a 2012 magistrate judge’s ruling from the Southern District of Texas, the government requested
a search warrant to remotely search an unknown computer in an unknown location that was
believed to have been used to perpetrate a fraudulent scheme.14 The government wanted access
to, among other things, IP addresses used; records of Internet activity, including browsing history
and search terms used; and photographs taken using the computer’s built in camera.15 Magistrate
Judge Stephen Smith rejected the government’s application on two grounds. First, Judge Smith
found that the government’s application did not meet one of the territorial limitations found in the
Rule.16 Second, he found that the application failed to meet the particularity requirement
contained in the Fourth Amendment, which requires that “no warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized,”17 as the government failed to explain how the
target device was to be found.18 Further, Judge Smith noted the risk of targeting innocent
computers when the location of the target is unknown.19
10
FED. R. CRIM. P. 41.
Id. at (d)(1).
12
Id. at (b)(1).
13
FED. R. CRIM. P. 41(b)(2-5).
14
In re Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp. 2d 753, 755 (S.D. Tex. 2013).
15
Id. at 755-56.
16
Id. at 758.
17
U.S. CONST. amend. IV (emphasis added).
18
In re Warrant. 958 F. Supp. 2d at 759.
19
Id.
11
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
Amendment Process
Prompted partially by the ruling from the Southern District of Texas, the proposal to amend Rule
41 was first brought to the attention of the Judicial Conference in a September 2013
memorandum from DOJ, which highlighted two “increasingly common situations” faced by
investigators that warranted a change in the rules.20 The first is where the warrant sufficiently
describes the device to be searched, but law enforcement officials do not know the location of the
target device. The second is where the investigation requires officials to engage in surveillance of
numerous computers in multiple jurisdictions. The proposed rule change was published for public
comment in August 2014, in which DOJ, privacy advocates, computer experts, and members of
the general public offered various arguments for and against the proposed rule change.21 On April
28, 2016, the Supreme Court transmitted the proposed rule change to Congress. Pursuant to the
Rules Enabling Act, unless Congress responds via enacted legislation, the proposed rule will take
effect on December 1, 2016.22
Proposed Amendment
The proposed amendment was designed to address two issues: (1) access to a device at an
unknown location; and (2) access to multiple computers in multiple districts. Each will be
addressed in turn.
Searches of Devices with Unknown Locations
The first rationale for amending Rule 41 applies to situations when the government is able to
describe the computer to be searched, but does not know the location of the computer. DOJ
asserted, and the Judicial Conference accepted, that the government faces this situation more
regularly because persons who commit crimes on the Internet are using anonymizing technologies
with greater frequency.23 Through the use of proxy servers, criminals are able to mask their IP
addresses such that the recipient only knows the IP address of the proxy and not the originator’s
IP address.24
To permit extraterritorial searches, Rule 41 would be amended to read as follows:
a magistrate judge with authority in any district where activities related to a crime may
have occurred has authority to issue a warrant to use remote access to search electronic
storage media and to seize or copy electronically stored information located within or
outside that district if ... the district where the media or information is located has been
concealed through technological means[.]25
20
Memo, Department of Justice to Advisory Committee on Criminal Rules 2 (Sept. 18, 2013), in Agenda Book, April
7-8, 2014, supra note 4, at 172.
21
See Docket Folder, Proposed Amendments to the Federal Rules of Criminal Procedure (last visited June 29, 2016),
available at https://www.regulations.gov/docket?D=USC-RULES-CR-2014-0004
22
28 U.S.C. § 2074.
23
Advisory Committee on Criminal Rules, Agenda Book, Meeting of March 16-17, 2016, at 88 (2016), available at
http://www.uscourts.gov/rules-policies/archives/agenda-books/advisory-committee-rules-criminal-procedure-may2015.
24
Id.
25
See Rules Package, supra note 3, at 222.
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
Multi-device, Multi-district Searches
The second rationale for amending Rule 41 applies to situations where the government needs to
search multiple computers in numerous districts as part of a large-scale investigation of computer
crimes.26 Under the current rule, there are limited mechanisms for seeking a warrant outside of
the judicial district in which a computer is located, but none cover the type of authorization DOJ
seeks here.27 In its submission to the Judicial Conference, DOJ argued that effective investigation
of large-scale online attacks, such as botnets—an “interconnected network of computers infected
with malware without the user’s knowledge and controlled by cybercriminals”28—requires a
change to Rule 41 such that government officials can seek authorization in one district court,
although the criminal activity may span multiple districts.29
As submitted to Congress, the second prong of the proposed rule change reads as follows:
a magistrate judge with authority in any district where activities related to a crime may
have occurred has authority to issue a warrant to use remote access to search electronic
storage media and to seize or copy electronically stored information located within or
outside that district if ... (B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5),
the media are protected computers that have been damaged without authorization and are
located in five or more districts.30
This change would allow DOJ to remotely access a potentially large number of affected
computers, without having to apply for a warrant in each judicial district in which an affected
computer is located.
Issues Raised by Proposed Amendment to Rule 41
As part of the review process, the Advisory Committee received comments both supporting and
opposing the proposed amendment to Rule 41. The Advisory Committee noted that “the most
common theme in the comments opposing the amendment was concern that it relaxed or undercut
the protections for personal privacy guaranteed in the Fourth Amendment.”31 Objectors made
other arguments against the proposal including that it might engender forum shopping. This
section will briefly explore these and other concerns raised by public comments.
Rationale for Amendment
Several commenters have proffered various arguments in support of the proposed rule change.
First, and perhaps most obviously, is the fact that DOJ has been prevented in at least one reported
ruling from remotely searching a target’s computer when it could not state the location of the
target.32 More generally, DOJ has argued that criminals are using anonymizing techniques more
frequently, so that DOJ is able to identify the computer but not the location of the target. In this
26
Id. at 89.
FED. R. CRIM. P. 41(b)(2)-(5).
28
See What is a Botnet Attack? – Definition, Kaspersky Lab (last visited June 29, 2016), https://usa.kaspersky.com/
internet-security-center/threats/botnet-attacks#.V3QTpfkrJbU.
29
See Agenda Book, April 7-8, 2014, supra note 4, at 156.
30
See Rules Package, supra note 3, at 223. Federal law outlaws the transmission of a program or command with the
intent to damage a computer system. See 18 U.S.C. § 1030(a)(5).
31
Memorandum from Reporters to Advisory Committee on Rules, Rule 41 (Feb. 25, 2015), in Advisory Committee on
Criminal Rules, Agenda Book, Meeting of Mar. 16-17, 2015 [hereinafter Agenda Book, March 2015].
32
See Current Version of the Rule, supra p. 2.
27
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
vein, DOJ has argued that “there is a substantial interest in catching and prosecuting criminals
who use anonymizing technologies, but locating them can be impossible for law enforcement
absent the ability to conduct a remote search of the criminal’s computer.”33 As to the second
proposed change—investigation of botnet-like schemes that involve many computers in many
districts—the National Association of Assistant United States Attorneys argued that coordinating
many requests and review by many magistrate judges “not only wastes judicial and investigative
resources, but also may cause delay that impedes investigation.”34
Particularity of Search
Opponents of the proposed amendment to Rule 41 have argued that it would violate the
particularity requirement of the Fourth Amendment. Again, the Fourth Amendment requires that
no warrant shall issue unless it “particularly describe[s] the place to be searched, and the
persons or things to be seized.”35 These observers cite to the Southern District of Texas ruling,
which held that an extraterritorial warrant would violate the Fourth Amendment particularity
requirement because it failed to state a location for the computer.36
In response to this concern, the Advisory Committee included a Committee Note to Rule 41,
providing the following explanation about how the Fourth Amendment should apply to the
proposed amendment:
The amendment does not address constitutional questions, such as the specificity of
description that the Fourth Amendment may require in a warrant for remotely searching
electronic storage media or seizing or copying electronically stored information, leaving
the application of this and other constitutional standards to ongoing case law
development.37
However, some privacy advocates believe that this proviso will be largely ineffective. For
example, the Center for Democracy and Technology (CDT) noted that while “the Committee does
not seek to address such questions in this rulemaking, the proposed modification to Rule 41
nonetheless does have direct bearing on these very questions since it specifically contemplates the
issuance of warrants for computers in concealed locations.”38
Surreptitious Entry, Destructive Searches
At least one observer has argued that the proposed amendment cannot meet the more demanding
Fourth Amendment standard required for covert-entry remote access searches, 39 which generally
requires that the government has some “reasonable necessity” for conducting the surreptitious
search and that notice be given a reasonable time after the search is conducted.40 Others have
argued that the use of “malware and zero-day exploits is more invasive than other forms of
33
See Agenda Book, April 7-8, supra note 4, at 172.
See Written Comment on Rule 41, National Association of Assistant United States Attorneys (Feb. 4, 2015),
available at https://www.regulations.gov/document?D=USC-RULES-CR-2014-0004-0027.
35
U.S. CONST. amend. IV (emphasis added).
36
CDT, Written Statement, supra note 9.
37
Rules Package, supra note 3.
38
CDT, Written Statement, supra note 9.
39
Electronic Privacy Information Center, Statement on Proposed Amendments to Rule 41 of the Federal Rules of
Criminal Procedure (Nov. 5, 2014), available at https://www.regulations.gov/document?D=USC-RULES-CR-20140004-0010.
40
See United States v. Villegas, 899 F.2d 1324, 1337 (2d Cir. 1990).
34
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
permissible searches because the consequences and collateral damage associated with their use
are inherently unpredictable and often irreversible.”41 Like with the particularity arguments,
discussed earlier, the Judicial Conference responded to these comments by highlighting the
Committee Note, which asserts that the rule “does not foreclose or prejudge these constitutional
issues,” but rather “leaves them to be resolved on a case-by-case basis.”42
Notice
Several commenters challenged the sufficiency of the notice requirements provided under the
proposed rule. The American Civil Liberties Union (ACLU), for instance, argued that the notice
requirements were lessened under the proposed amendment as they did not require that the officer
“must” provide a copy of the warrant—as is required currently under Rule 41(f)(1)(C)—but
instead would require only that the officer “make reasonable efforts to serve a copy of the warrant
and receipt” and ensure service is “reasonably calculated to reach that person.”43 The ACLU
argued that providing notice will be difficult in many common situations, such as a target who
signs onto a wireless network at a coffee shop or library.44 In response, the Advisory Committee
described the proposed notice requirements as “intended to be parallel, to the degree possible,
with the requirement for physical searches.”45 Providing notice in the case of physical searches is
not always possible, the Committee noted, and the rule as currently written does not require
actual notice, but rather that notice be given “to the person from whom, or from whose premises,
the property was taken, or leave a copy of the warrant and receipt at the place where the officer
took the property.”46
Additionally, the ACLU argued that the government should have to provide notice to both the
owner of a computer and others who may have used and stored information on that device, not
one or the other as is currently proposed in the rule.47 The Judicial Conference rejected this
suggestion, claiming that if the government executes a warrant for a business and seizes records
of individual customers, providing notice to each customer would be too burdensome on the
government, and is not required under current law.48
Finally, several commenters argued that government officials could delay giving notice, as the
proposed notice requirement only requires that the government make “reasonable efforts” to
provide notice, but does not require that it be given promptly.49 Answering these comments, the
Committee noted that Rule 41(f)(3) permits delayed notice if permitted by statute. The
Committee added a Committee Note stating that “Rule 41(f)(3) allows delayed notice only ‘if the
delay is authorized by statute.’”50
41
See Amer. Civil Liberties Union, Second Comment on the Proposed Amendment to Rule 41 Concerning “Remote
Access” Searches of Electronic Storage Media 23-24 (Oct. 31, 2014), available at https://www.regulations.gov/
document?D=USC-RULES-CR-2014-0004-0013ACLU [hereinafter ACLU, Second Comment].
42
See Agenda Book, March 2015, supra note 31, at 92.
43
ACLU Second Comment, supra note 41, at 23-24; Final Rules Package, supra note 2, at 224.
44
ACLU Second Comment, supra note 41.
45
Agenda Book, March 2015, supra note 31, at 93.
46
FED. R. CRIM. P. 41(f)(1)(C).
47
ACLU, Second Comment, supra note 41, at 24.
48
Agenda Book, March 2015, supra note 31, at 93-94.
49
See ACLU, Second Comment, supra note 41, at 24-25; EPIC, Written Statement, supra note 37.
50
Rules Package, supra note 3 (emphasis added).
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
Impediments to Judicial Review
Some commenters also raised concerns that the proposed rule, combined with existing judicial
doctrines, could hinder judicial review in various ways, including:
Ex parte proceedings and lack of technical sophistication in the judiciary.
Warrant proceedings are largely resolved ex parte—that is, only the
government’s attorney is present to offer arguments to the magistrate judge.
Some have argued that the nature of these one-sided proceedings would hinder
effective judicial review, especially when difficult technological questions are
involved.51
Good Faith. Under the good faith exception to the exclusionary rule of the Fourth
Amendment, unlawfully obtained evidence can still be admissible in a criminal
trial if the evidence was “obtained in objectively reasonable reliance on a
subsequently invalidated search warrant.”52 Some have argued that, because
courts have the authority to resolve the good faith question before the substantive
Fourth Amendment question,53 the constitutional merits could largely go
unresolved.54
Qualified Immunity. Qualified immunity operates in a similar manner in the civil
context as good faith does in the criminal context: it “protects government
officials from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.”55 Again, courts are permitted to resolve this procedural
question before moving to the merits of the plaintiff’s claim.56 Commenters have
posited that qualified immunity, like good faith, could preclude judicial review of
the constitutionality of these largely untested search and seizure techniques.57
Forum Shopping
Some have argued that permitting remote searches under Rule 41 in any district in which an
element of the crime occurred raises significant concerns of forum shopping. That is, they argue
that when the government has multiple options of jurisdictions in which to file a warrant
application, it will more often than not choose the more government-friendly judge.58
Process Concerns
In addition to comments concerning the changes to Rule 41 itself, many observers have
challenged the method in which the rule is being changed. Some have argued that as sensitive a
51
See, e.g., ACLU, Second Comment, supra note 41, at 25-26.
See United States v. Leon, 468 U.S. 897, 922 (1984).
53
See., e.g., United States v. Clay, 646 F.3d 1124, 1128 (8th Cir. 2011).
54
See ACLU, Second Comment, supra note 41, at 26 (“[E]ven in cases where a remote access warrant fails the
particularity, probable cause, or reasonableness requirements of the Fourth Amendment, courts will generally avoid
ruling on the issue.”).
55
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
56
See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
57
See ACLU, Second Comment, supra note 41, at 26-27.
58
CDT, Written Statement, supra note 9, at 5.
52
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Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41
topic as remote hacking should undergo a more thorough vetting via the formal congressional
lawmaking process rather than through the rulemaking process of a federal agency.59 As argued
by the Center for Democracy & Technology:
The proposed changes to FRCrmP Rule 41 are not a Congressional amendment, nor do
they implement a direct expansion of extraterritorial jurisdiction codified in statute.
Congress has not authorized extraterritorial or multi-district searches for computers with
concealed locations or during investigations under 18 U.S.C. § 1030(a)(5), as the
proposed modification to Rule 41 contemplates. The proposed modification attempts to
expand magistrates’ Rule 41 authority in a manner that has historically been
accomplished by Congressional action. The proposed modification should be handled
through Congress rather than judicial rulemaking. 60
Congressional Action
Upon transmittal of the proposed amendment to Rule 41, Senator Ron Wyden introduced the
Stopping Mass Hacking Act (S. 2952, H.R. 5321) to reject this rule change. It would provide as
follows:
The proposed amendments to rule 41 of the Federal Rules of Criminal Procedure, which
are set forth in the order entered by the Supreme Court of the United States on April 28,
2016, shall not take effect.61
Again, if Congress does not act, the proposed amendment will take legal effect on
December 1, 2016.62
59
Id.
Id.
61
S. 2952, 114th Cong. (2016); H.R. 5321, 114th Cong. (2016).
62
See 28 U.S.C. § 2074.
60
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Appendix. Text of Proposed Amendment to Rule 41
The following language is the final proposed amendment transmitted from the Supreme Court to
Congress:
Rule 41. Search and Seizure.
…
(b) Authority to Issue a Warrant. Venue for a Warrant Application.
At the request of a federal law enforcement officer or an attorney for the government:
…
(6) a magistrate judge with authority in any district where activities related to a crime
may have occurred has authority to issue a warrant to use remote access to search
electronic storage media and to seize or copy electronically stored information located
within or outside that district if: (A) the district where the media or information is located
has been concealed through technological means; or
(B) in an investigation of a violation of 19 18 U.S.C. § 1030(a)(5), the media are
protected computers that have been damaged without authorization and are located in five
or more districts.
(f) Executing and Returning the Warrant.
(1) Warrant to Search for and Seize a Person or Property.
…
(C) Receipt. The officer executing the warrant must give a copy of the warrant and a
receipt for the property taken to the person from whom, or from whose premises, the
property was taken or leave a copy of the warrant and receipt at the place where the
officer took the property. For a warrant to use remote access to search electronic storage
media and seize or copy electronically stored information, the officer must make
reasonable efforts to serve a copy of the warrant and receipt on the person whose
property was searched or who possessed the information that was seized or copied.
Service may be accomplished by any means, including electronic means, reasonably
calculated to reach that person.63
Author Contact Information
Richard M. Thompson II
Legislative Attorney
rthompson@crs.loc.gov, 7-8449
63
Rules Package, supra note 2.
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