Cybersecurity

Changes in criminal procedure rule could expand the government’s investigative net

In the United States, warrants have two major components: particularity and territoriality. The founders wanted the government to specify what they were looking for after dealing with malicious general warrants—a vague writ used by the British to search their subjects at will.

Particularity requires that a warrant is specific about who or what is to be searched, where and what is being sought. Territoriality generally means that the search warrant is issued in the jurisdiction it will be executed in, with a few exceptions. The amended Rule 41 effectively does away with these standards in hacking cases.

The Justice Department claimed in a series of blog posts that Rule 41, which was originally codified in 1917 with intermittent updates, was out of date because of technology advances. These include anonymizing technology such as Tor, a private way to search the internet, and botnets, a network of private computers infected with malicious software that gives control to a third party.

Leslie Caldwell, then the head of the DOJ’s Criminal Division, argued on the blog last November that these technologies make it nearly impossible to know where a computer is located for the sake of a warrant application, which “makes it unclear which court—if any—an investigator is supposed to go to with a search warrant application when investigating anonymized crime.”