Unwarranted Amendments: Criminal Procedure Rule 41 Alteration Goes Too Far

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

The state of modern technology has created many challenges for the existing legal framework.[1] The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (Advisory Committee) is currently deliberating two proposed changes to the search and seizure requirements of Federal Rule of Criminal Procedure 41. The changes, if enacted, would allow courts to issue search warrants permitting the remote access, search, and seizure of electronic data when the location of the targeted computer or server is not identifiable. The Department of Justice (DOJ) has argued that these changes only address jurisdictional issues created by anonymous computer attacks.[2] However, Google is among those arguing against the amendments, claiming that the new rule would threaten Fourth Amendment protections and that the issue is better left to Congress.[3] Google’s concerns are valid; the amendments to Rule 41 give little assurance that warrants authorized under the new rule would remain limited. The amendments threaten Fourth Amendment protections and compromise diplomacy with foreign nations without offering any safeguards to assuage these concerns. Therefore, the amendments should be rejected and the issue left to Congress, where there can be a more rigorous discussion of the merits and the addition of proper safeguards should the rule be approved.

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