November 30, 2016

Review the Rule Act Aims to Delay Changes to Federal Rules of Criminal Procedure

Danielle Pomeraniec

On November 17, 2016, the Review the Rule Act was introduced by several members of the Senate and the House of Representatives. The purpose of the Act is to delay proposed changes to Federal Rule of Criminal Procedure 41 from going into effect until July 1, 2017. The changes, approved by the United States Supreme Court on April 28, 2016, and currently set to go into effect December 1, 2016, will expand the government’s ability to search computers and other digital devices. Specifically, the changes will allow courts to issue warrants to search electronic storage media and seize electronically stored information where the location of the information has been concealed due to the use of technology such as anonymizing software. Proposed Fed. R. Crim. P. 41(b)(6)(A). Warrants may also be issued where protected computers located in five or more districts were accessed without authorization (e.g., the creation and control of “botnets”).  Proposed Fed. R. Crim. P. 41(b)(6)(B). See also Committee Notes to Proposed Fed. R. Crim. P. 41. Furthermore, under the proposed changes, the government must make a reasonable effort to serve a copy of the warrant on the owner of the searched property or information. Proposed Fed. R. Crim. P. 41(f)(1)(C). Under the current rule, the government must notify the subject of a search and seizure warrant without any qualifiers.

The act’s sole purpose is to gain more time to assess the impact the changes would have on individuals’ Fourth Amendment rights. Introduced in the Senate by Senators Chris Coons (D-DE), Steve Daines (R-MO), Mike Lee (R-UT), Ron Wyden (D-OR), and Al Franken (D-MN) and in the House of Representatives by Representatives Ted Poe (R-TX) and John Conyers, Jr. (D-MI), the act was referred to the Senate and House Judiciary Committees on November 17, 2016. However, given the impending deadline, there is virtually no possibility that the act will pass.

Danielle Pomeraniec is an associate attorney at Koster, Brady & Nagler, LLP, in New York City, New York.