Back in June 2016, DoJ posted a press release that mostly went unnoticed. However, Lynch beginning December 1, 2016 can take actions which are outlined in the memo and which were decided upon behind closed doors without oversight or transparency. This is another one of the overreaches the administration hoped skipped by public notice.
RULE 41 CHANGES ENSURE A JUDGE MAY CONSIDER WARRANTS FOR CERTAIN REMOTE SEARCHES
June 20, 2016
Blog post courtesy of Assistant Attorney General Leslie R. Caldwell of the Criminal Division
Congress is currently considering proposed amendments to Rule 41, which are scheduled to take effect on Dec. 1, 2016.
This marks the end of a three-year deliberation process, which included extensive written comments and public testimony. After hearing the public’s views, the federal judiciary’s Advisory Committee on the Federal Rules of Criminal Procedure, which includes federal and state judges, law professors, attorneys in private practice and others in the legal community, rejected criticisms of the proposal as misinformed and approved the amendments. The amendments were then considered and unanimously approved by the Standing Committee on Rules and the Judicial Conference, and adopted by the U.S. Supreme Court.
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. 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. 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 amendments would apply in two narrow circumstances:
First, where a suspect has hidden the location of his or her computer using technological means, the changes to Rule 41 would ensure that federal agents know which judge to go to in order to apply for a warrant.
And second, where the crime involves criminals hacking computers located in five or more different judicial districts, the changes to Rule 41 would ensure that federal agents may identify one judge to review an application for a search warrant rather than be required to submit separate warrant applications in each district—up to 94—where a computer is affected.
These changes would ensure a court-supervised framework through which law enforcement can successfully investigate and prosecute these instances of cybercrime.
“HR 3490 – Strengthening State and Local Cyber Crime Fighting Act” passed in the House of Representatives as amended in November 2015. Thursday, December 1st, it was read in the Senate and referred to the Committee on the Judiciary.
(Sec. 2) This bill amends the Homeland Security Act of 2002 to establish in the Department of Homeland Security (DHS) a National Computer Forensics Institute to be operated by the U.S. Secret Service to: (1) disseminate homeland security information related to the investigation and prevention of cyber and electronic crimes and related threats; and (2) educate, train, and provide equipment to state, local, tribal, and territorial law enforcement officers, prosecutors, and judges to carry out investigations, prosecutions, and court proceeding relating to such crimes and threats.
–must provide education and training on investigation methods, computer and mobile device forensic examinations, network intrusion incidents, and methods to obtain, process, store, and admit digital evidence in court;
–must ensure that timely, actionable, and relevant expertise and homeland security information related to cyber and electronic crimes and threats is shared with such officers, prosecutors, and judges; and
–may provide officers, prosecutors, and judges with computer equipment and tools for such investigations and examinations.
The Secret Service’s network of Electronic Crime Task Forces is to be expanded through the addition of task force officers, prosecutors, and judges educated and trained at the institute, in addition to academia and private sector stakeholders.
The institute must seek opportunities to coordinate with the Federal Law Enforcement Training Center within DHS to help enhance the center’s training for such cyber and electronic crimes and threats.
Cyber security versus privacy. Given the lawlessness of Lynch and the current DoJ, this is a concern for me. The change over to a new department AG and personnel in DoJ would not prevent future groups from expanding their hacks, abusing or attacking private citizens (even if they are guilty of bad behavior) on an at-will basis.
Since the judges, lawyers, and Supreme Court have discussed and changed the rule after lengthy debate, why is this important. Obviously like ICANN, there are hidden sharks just waiting for the bait to be thrown out for their dining pleasure. Cybersecurity is as we are all well aware on the rise and critical to the information we all believe and expect to remain private.
Is this an issue for readers?
Contact your senator if you believe there is a problem. It’s time we use the cyber highway judiciously to let our representatives and senators know where we stand. We have only ourselves to blame if we abdicate this right. Every representative and senator has contact email information readily available. If we don’t hold their feet to the fire, then we could end up with future presidents taking further liberties and using current laws against citizens.