Federal law enforcement officials should be able to go forward with a change to the Federal Rules of Criminal Procedure that would lower the bar for searching computers in cyberspace, the Justice Department is telling Congress.
The comments came from Leslie Caldwell, assistant attorney general of the department’s criminal division, in a blog post late Monday. “The amendments do not change any of the traditional protections and procedures under the Fourth Amendment, such as the requirement that the government establish probable cause,” Caldwell said in the post. “Rather, the amendments would merely ensure that at least one court is available to consider whether a particular warrant application comports with the Fourth Amendment.
“The amendments would not authorize the government to undertake any search or seizure or use any remote search technique, whether inside or outside the United States, that is not already permitted under current law,” Caldwell wrote. “The use of remote searches is not new and warrants for remote searches are currently issued under Rule 41. In addition, most courts already permit the search of multiple computers pursuant to a single warrant so long as necessary legal requirements are met.”
The amendment to Rule 41 is set to take effect on Dec. 1 unless Congress passes an injunction against the change, which officials at Justice have argued is necessary in order to fight crime. The issue dates back to early 2015, when the FBI took over a child pornography website and infected thousands of computers around the globe with malware. That technique allowed the agency to locate users who were using online anonymizing services, like the Tor Browser or virtual private networks, but several courts have thrown out the prosecutions that resulted, citing the lack of an appropriate search warrant.
Caldwell said that trying to obtain search warrants from all 94 federal judicial districts would make it too difficult for the department to conduct timely investigations. “For example, agents may seek a search warrant to assist in the investigation of a ransomware scheme facilitated by a botnet that enables criminals abroad to extort thousands of Americans,” Caldwell said, referring to a scheme through which thousands of computers can be held captive by hackers.
“Absent the amendments, the requirement to obtain up to 94 simultaneous search warrants may prevent investigators from taking needed action to liberate computers infected with malware,” Caldwell added. “This change would not permit indiscriminate surveillance of thousands of victim computers — that is against the law now and it would continue to be prohibited if the amendment goes into effect. These changes would ensure a court-supervised framework through which law enforcement can successfully investigate and prosecute these instances of cybercrime.”
