“I think of the 19th century as the industrial revolution, the 20th century as modern medicine, and I think of the 21st century as the age of new technology,” Weissmann said. “The problem I see is you have … nation states with their individual laws, but you have crimes that are transcending all of that; we are wrestling with how to deal with those anomalies and how to update the law.”
Weissmann mentioned cybercrime — attacks on critical infrastructure, financial networks and intellectual property — as one of the major problems of the 21st century. “It is now possible to commit crimes in seconds that would have really taken years of planning to do in the real, 3-D physical world,” he said.
According to Weissmann, current laws do not address how to deal with geography, evidence retention and victim protection in a virtual world.
In a situation where the crime has been committed in multiple locations — including other places around the globe — or the location is unknown, Weissmann cited Rule 41 of the Federal Rules of Criminal Procedure as an example of a law that does not address the challenges of a nonphysical world hosted by new technologies.
Rule 41 sets guidelines on the issuance and execution of a search warrant. And yet in cybercrime cases, the locations needed to collect evidence or protect a witness aren’t always clear, according to Weissmann.
“For a typical search warrant, you need to go to the magistrate, who is located in the place where the search is going to occur,” Weissmann said. “For most cyber cases — and there is one exception — that is not possible; it’s not a single location, it’s multiple locations, and sometimes you don’t even know where the search is actually occurring because you don’t know the locus of the computer in the panoply of cyberspace.”
The only exception to Rule 41 is when cybercrime becomes an issue of national security. Only then, a window of opportunity is opened to members of the law enforcement and the intelligence communities to sidestep the warrant requirement, according to Weissmann.
“In terms of cyber, which is not a 3-D world, there would clearly need to be an update so that you are not trying to fit a particular problem into antiquated law and make the best arguments you can,” he said.
Weissmann said that members of the intelligence community have made it a priority to develop a proposal that balances security, privacy and constitutional rights.