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The Rule 41(b) Amendments Have Serious Implications for our Constitutional Rights, Judicial Economy, and Global Surveillance Policies

As I previously wrote , in December 2016 Rule 41 of the Federal Rules of Civil Procedure was changed to give law enforcement more expansive authority to conduct searches of computers. How the new procedural rule will interact with core constitutional values and established legal principles, as well as what the practical consequences of the rule are, remain open questions.

(1) Fourth Amendment

The proposed changes may well fall afoul of the Fourth Amendment. As I have discussed in a previous blog post, the Fourth Amendment protects people against unreasonable searches and seizures. It does this by requiring the government to obtain a warrant before conducting most searches, by requiring those warrants to be supported by probable cause, and by requiring the warrants to be particular about the location to be searched and the items to be seized.

Under the new Rule 41(b), however, magistrate judges will be asked to sign off on warrants that sweep up an unknown number of individuals and an unknown quantity of information, in an unknown number of venues. In many cases, there will be no way to ascertain whether probable cause exists to conduct a search on each unknown user before the search takes place.

The potential, undefined scope of the warrants also raise serious questions about the particularity requirements of the Fourth Amendment. Rule 41(b) allows for the search of multiple—into the thousands—of computers, all without having to provide information about the computers’ locations. Moreover, the warrants allow for the mining of any data from those computers—as long as the computer’s location was hidden using technology, the amended rule does not limit what kind of data can be seized. In the Playpen search, law enforcement allegedly obtained only IP address information, but under Rule 41(b), they could seek and be granted permission to obtain significantly more data.

(2) First Amendment

The expansion of federal law enforcement’s authority to search private computers under Rule 41(b) also has troubling implications for the First Amendment. This is not the first time in U.S. history that violations of the Fourth Amendment have endangered individuals’ First Amendment rights. As I pointed out in a previous blog post, Stanford v. State of Texas, 379 U.S. 476 (1965), is an important Supreme Court case that limited the government’s ability to issue general warrants. The concerns Justice Stewart raised in Stanford are amplified in this technological age, where the internet has been an important part of people’s political and personal communications, a mechanism for journalists to communicate news to readers, and a forum for individuals to meet, organize, protest, and engage with one another. The new Rule 41(b) clears a path to give law enforcement potentially unfettered access to the extensive data stored on personal devices based solely on a user’s attempts to remain anonymous on the internet. It may well create space for the kind of overreach that Justice Stewart railed against when he pointed out “[t]he constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant.”

(3) Forum Shopping

Earlier versions of Rule 41(b)’s venue restrictions were intended to prevent law enforcement from forum shopping—going to whichever magistrate judge is most likely to issue the warrant that law enforcement wants. In general, courts in the U.S. have historically rejected forum-shopping, and developed means to discourage it in both civil and criminal law because it breeds inefficiency, wastes resources, and enables some parties to take advantage of the legal system. But now, for the purpose of seeking warrants to search private computers, law enforcement have authority to forum shop, to the detriment of defendants who might never know they are being targeted.

The fact that federal courts across the country have taken different views on the lawfulness of the Playpen search warrants indicates that courts and judges take different stances on similar questions of law. Different magistrate judges may have different views on the sufficiency of a warrant application, and may have different levels of technological sophistication to inform their reading of those applications. Moreover, magistrate judges are informed by their knowledge of the laws and rules of their own jurisdictions, and bring that experience to bear on their decisions about whether a search warrant should issue. Under the amended rule, law enforcement need not be bound by the approach that the magistrates take in their home jurisdiction, and instead may be able to approach more amenable magistrate judges located elsewhere, which in turn will further erode the protections that magistrate-authorized warrants are intended to provide against unreasonable searches and seizures.

(4) International Implications

The Playpen searches extended far beyond the U.S. borders, potentially in violation of the laws of the countries into which the searches reached. Under amended Rule 41(b), U.S. law enforcement can continue to obtain warrants and implement network investigative techniques (“NITs”) that search and seize data from computers located abroad. This stands in stark contrast to another subsection of the rule, in which magistrates can issue warrants for property located outside the district if the offense took place inside the district but specifies that the location must still be within a United States territory (though these physical restrictions do not apply where the offense being investigated is terrorism).

The amended rule allows U.S. law enforcement to break new ground in reaching into the private devices and data of people living on foreign soil, and has troubling implications for the safety of people in foreign countries who anonymize their internet usage to protect themselves against oppressive regimes. Their anonymity now makes them vulnerable to searches carried out under the amended Rule 41(b). Moreover, if U.S. law enforcement begins carrying out broad searches of computers located outside the United States, these practices may well invite other countries to authorize similarly unfettered, broad hacking of computers located in foreign countries, including the United States.

Amended Rule 41(b) appears to erode individuals’ core Fourth and First Amendment Rights, allows law enforcement to engage in judicial forum-shopping to avoid the legal restrictions that may exist in their own jurisdictions or the jurisdictions in which they wish to conduct investigation, and has global implications for the security and privacy of both foreign nationals and U.S. citizens alike.

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