March 30, 2015 Practice Points

Government Access to Computers in Criminal Investigations

By Michael L. Huggins

A federal advisory committee is considering a proposal that would make it easier for the Justice Department to locate and access computers in criminal investigations. Google and privacy advocates oppose the measure, fearing that it would grant the government expansive new powers to access computers anywhere in the country. In contrast, existing rules of criminal procedure generally permit a judge to approve a search warrant only for property located within the district in which the judge sits.

Federal prosecutors, however, argue that the new measure is necessary for tracking down cyber criminals who hide their location while conducting illegal activities online. The current rules of criminal procedure, the government claims, are outdated in an era when online criminals, such as child pornographers and drug traffickers, can hide behind anonymous computer networks.

One way that the Justice Department wants to expand the rules is by permitting judges in districts where "activities related to a crime" have occurred to approve computer searches, even for computers located outside of their district. This type of flexibility is necessary, the government says, for when authorities cannot find a computer and need to access it remotely and for investigations involving networks of computers, spanning multiple judicial districts, that have been infected with a virus.

Privacy organizations, however, vehemently oppose this proposal. The American Civil Liberties Union, for example, warns that the rule change could violate the constitutional requirement that search warrant applications be specific about the property to be searched. Alan Butler, senior counsel at the Electronic Privacy Information Center, asks, "What procedural protections are going to be in place when you do these types of searches? How are they going to be limited?" Google, another critic of the proposal, worries that it "raises a number of monumental and highly complex constitutional, legal and geopolitical concerns that should be left for Congress to decide."

A further concern of privacy advocates if the committee adopts the proposal is that the FBI would begin more frequently using surveillance technology, such as placing remote tracking devices in computers. "To the extent that the government has been prevented from doing lots of these kinds of searches because they didn't necessarily have a judge to go to, this rule change raises the risk that the government will start using these dubious techniques with more frequency," said Nathan Freed Wessler, an ACLU lawyer specializing in privacy and technology.

According to the Justice Department, however, the proposal just makes sure that investigators can ask a judge for a warrant in cases where the location of a computer is unknown. The proposal, the Department says, would not provide the government with any additional technological authorities that it does not already have.

The Justice Department highlights that judges in the past have granted search warrants that extended outside their district. Further, where courts have declined to do so, some have nevertheless acknowledged that less stringent rules regarding territoriality may be necessary in response to advancing technology. In a 2013 case, for example, Texas magistrate judge, Stephen Smith, determined that he lacked the authority to approve the search for a computer "whose location could be anywhere on the planet," but said that "there may well be a good reason to update the territorial limits of that rule in light of advancing computer search technology."

A criminal procedure advisory committee of the Judicial Conference of the United States—a panel made up of judges and lawyers—is considering the proposal. The committee meets twice a year, including this month. If the committee approves the proposal, the ball is passed to the Supreme Court and, ultimately, to Congress, for approval. The rule change would take effect in December 2016.

Keywords: minority trial, litigation, computer crime, Internet, Google, online crime

Michael L. Huggins is a J.D. Candidate at Fordham University School of Law in New York, New York.

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