A Department of Justice proposal to amend Rule 41 of the Federal Rules of Criminal Procedure would make it easier for domestic law enforcement to hack into computers of people attempting to protect their anonymity on the Internet. The DOJ has explicitly stated that the amendment is not meant to give courts the power to issue warrants that authorize searches in foreign countries—but the practical reality of the underlying technology means doing so is almost unavoidable.
The result? Possibly the broadest expansion of extraterritorial surveillance power since the FBI’s inception.
This post highlights key issues raised by the international aspect of the DOJ proposal, in the attempt to encourage wider public debate before the FBI is granted such expansive powers.
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The proposed amendment addresses a jurisdictional limitation in the current version of Rule 41(b)(1) that prevents a judge from issuing a warrant unless the target is known to be located within her district.
Under this proposed amendment, law enforcement could seek a warrant either where the electronic media to be searched are within the United States or where the location of the electronic media is unknown. In the latter case, should the media searched prove to be outside the United States, the warrant would have no extraterritorial effect, but the existence of the warrant would support the reasonableness of the search. AUSA Mythili Raman, Letter to Committee (emphasis added).
The latter standard seems to be a significant loophole in the DOJ’s own formulation of the approach, particularly given the global nature of the Internet. For instance, over 85% of computers directly connecting to the Tor network are located outside the United States. And since (according to the DOJ) each computer’s “unknown location” is virtually indistinguishable from the next, any law enforcement target pursued under this provision of the amendment may be located overseas.
Justice Department Proposal Would Massively Expand FBI Extraterritorial Surveillance | Just Security
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