The New Rule 41: Search Warrants Gone Too Far?

The New Rule 41: Search Warrants Gone Too Far?

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By Thomas Soldan

Thomas Soldan is a criminal defense and injury attorney at Price Benowitz LLP’s Leesburg Office. Mr. Soldan is an experienced litigator who represents clients in both criminal cases and personal injury matters. As such, his cases range from reckless driving and DUI matters to civil car accident cases.

On April 28, the Supreme Court issued a ruling amending Rules 4, 41, and 45 of the Federal Rules of Criminal Procedure, which will take effect after December 1, 2016. Rule 41 in particular regards search and seizure at the request of a “federal law enforcement officer or attorney for the government.”

Under the old Rule 41, such officials could only issue warrants for search and seizure of property located in their district, but the new Rule 41 expands this to electronic media located outside of their district.

These new warrants can take place in two circumstances, (1) if the information needed is “concealed through technological means,” or (2) if computers in five or more districts have been “damaged without authorization” in violation of the Computer and Fraud Abuse Act (CFAA)

The Supreme Court’s ruling has serious implications for the future handling of criminal search and seizure cases by the government and its agencies, including the FBI and the Department of Justice.

Senators, corporations, and other individuals/entities are speaking out against the amendment, including a 14-page comment issued by Google’s attorneys. Senator Ron Wyden (D-OR) has called the amendment “a sprawling expansion of government surveillance,” and plans to introduce legislation blocking the Supreme Court’s ruling in Congress next week. Senator Rand Paul (R-KY) will be co-sponsoring Wyden in his efforts to block the amendment.

The Center for Democracy and Technology (CDT) has also been a strong opposing voice, publishing an issue brief on May 6 discussing legality of the amendment. The rule change, the CDT fears, would violate the “particularity requirement of the Fourth Amendment, which requires that the place to be searched be specifically described.”

It is also particularly overreaching because the amendment may allow Rule 41 to apply to practically “any computing device in the world,” leading to dangerously extensive government oversight.

Virginia defense attorney Thomas Soldan commented, “The Supreme Court is overstepping the bounds of our right to privacy, as well as violating the Fourth Amendment. If Rule 41 goes forward as it stands, this could potentially change the way criminal cases are prosecuted and tried.”

Amid accusations of Supreme Court-endorsed government hacking, the new Rule 41 may have wide implications on criminal procedure in the United States going forward. If the Department of Justice and other government agencies adopt these amendments, many fear that the government will have too much authority to gather information that may not be constitutional under the Fourth Amendment.