In March, a new federal rule was passed that offers more flexibility to judges when issuing search warrants. The current rule, Rule 41, allows search warrants to secure evidence that is in a geographic boundary linked to a judge’s district. However, as digital files become more and more necessary in legal proceedings, it was clear that some evidence was held in data centers or computers far outside the bounds of a judge’s district. Now, in a law that passed 11-1, a judge can approve search warrants for “remote computer searches” anywhere in the world.
However, the law comes with new regulations. Warrants are no longer requires to be physically served in some cases, such as with computer searches. Electronic warrants can now be issued, which will actually save considerable funds at the federal and local levels. This decision wasn’t reached easily, and it has been a long time coming.
Digital Evidence in a Traditional World
For years, judges have been trying to make a decision on how to handle digital data within the confines of old laws. In 2014, one judge ruled that companies with digital storage must be required to physical give the data when required by law no matter where it may be stored. Microsoft was quick to file an appeal, claiming that the European Commissioner for Justice would not abide by it because “it bypasses existing formal procedures that are agreed between the EU and the US”. Plus, it “may be in breach of international law and may impede the attainment of the protection of individuals guaranteed in the Union.”
However, the change moved forward no matter how many big companies, including Google, or privacy groups protested. At the end of 2014, the organization for digital rights Accessnow.org provided a testament before the advisory committee fighting against the proposed changes. Of course, everyone thinks it’s necessary to update laws to reflect digital trends, but not if it flies in the face of Fourth Amendment rights regarding illegal search and seizure.
Is Your Data Safe?
One of the biggest complaints is the potential for intrusion into digital files, particularly when computers may be scattered around the world. It’s possible, given the language in the Rule, that warrants may be applied to lawfully created computer structures (think cloud services) whose sole role is to connect computers. Accessnow.org says, “Access and EFF are calling on the Committee to reject the proposed rule, effectively an end-run around Congress, and instead to allow the substantive changes of law to occur as part of an accountable and public legislative process.”
Google has also been outspoken about the changes, claiming that diplomatic treaties between nations may be compromised. However, the Justice Department says Google is reaching in their arguments. Deputy Assistant Attorney General David Bitkower says, “The proposal would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted by law.”
Although the votes have passed the Rule, that’s just the start of the process. Ultimately, it needs to pass in the Supreme Court and that may take years.