Westlaw Journal COMPUTER & INTERNET

Westlaw JournalCOMPUTER & INTERNETLitigation News and Analysis Legislation Regulation Expert CommentaryEXPERT ANALYSISVOLUME 34, ISSUE 3 / JULY 15, 2016Government Hacking Ok? New Rules WillExpand Government Authority To Do SoBy John McCaffrey, Esq., and Adrienne Kirshner, Esq.Tucker Ellis LLPCurrently, law enforcement hacks into cellphones and conducts remote electronic searches ofcomputers when the government can satisfy the probable cause requirements and can identify thejudicial district where the device is located — the district in which it should apply for the searchwarrant.The U.S. Supreme Court recently approved amendments to Rule 41 of the Federal Rules of CriminalProcedure, which shall take effect Dec. 1, 2016, unless Congress intervenes. These amendmentsif approved will drastically alter the landscape for where and when law enforcement may receivea warrant to search electronic devices by permitting devices located outside of the issuing court’sjurisdiction to be searched.In other words, Congress has until Dec. 1 to reject the recommendations or the amendments becomethe rules governing the issuance of warrants for remote electronic searches outside a district wherethe electronic device to be searched is located.CURRENT RULE 41(B)Current Rule 41(b) of the Federal Rules of Criminal Procedure authorizes search warrants forproperty located outside the judicial district where the person or property is located, but only undercertain specific enumerated situations. These situations involve: Property in the district that might be removed before execution of the warrant can occur. Tracking devices installed in the district, which may be monitored outside the district. Investigations involving domestic or international terrorism. Property located in a U.S. territory or a U.S. diplomatic or consular mission.1AMENDMENTS TO RULE 41(B)The amendments to Rule 41 intend to address two situations where the current venue requirementscannot be met: When there is a known target computer with an unknown location. When the investigation requires the coordinated search of numerous computers in severaljudicial districts.Accordingly, amended Rule 41(b) includes two additional exceptions to the current list of out-ofdistrict searches permitted under that subsection.

WESTLAW JOURNAL COMPUTER & INTERNETAmended Rule 41(b)(6) authorizes a court to issue a warrant to use remote access to searchelectronic storage media and seize electronically stored information inside or outside the districtwhen: The target of the investigation has used technology to conceal the location of the media tobe searched. In an investigation involving a violation of the Computer Fraud and Abuse Act, 18 U.S.C.A.§ 1030(a)(5), when the media to be searched include protected computers that have beendamaged and are located in five or more judicial districts.2The amendments to Rule 41(b) change only the territorial limitation presently imposed on judgesissuing warrants, not the Fourth Amendment constitutional requirements.To meet the particularity requirement of the Fourth Amendment, a warrant for remotely searchingelectronically stored media or seizing or copying electronically stored information will still needto describe with particularity both the computer to be searched and the items to be seized.The amendment involving investigations of Computer Fraud and Abuse Act violations touch avery limited class of investigations. A judge within a district where activities related to a relevantCFAA violation may have occurred can oversee the investigation and issuance of warrants forremote electronic searches if the media to be searched are protected computers that have beendamaged and are located in five or more districts.Amendments to Rule 41 ofthe Federal Rules of CriminalProcedure shall take effectDec. 1, 2016, unless Congressintervenes.In those instances, law enforcement could conduct a search and seize electronically storedinformation by remotely

Westlaw Journal VOLUME 34, ISSUE 3 / JULY 15, 2016 Government Hacking Ok? New Rules Will Expand Government Authority To Do So By John McCaffrey, Esq., and Adrienne Kirshner, Esq. Tucker Ellis LLP Currently, law enforcement hacks into cellphones and conducts remote electronic searches of