Concerned about changes to Rule 41 of the Federal Rules of Criminal Procedure? Susan Hennessey of LawFare suggests the changes are frivolous – but are leading to something much more important:
First, a refresher on the previous state of affairs. Previously, Rule 41 included territorial venue provisions authorizing magistrate judges to issue warrants only within their district, except in a set of narrowly defined circumstances. Because prior to obtaining a warrant, authorities did not know the physical location of a computer using Tor or other anonymization services, it was unclear whether law enforcement could obtain such a warrant from any federal judge under those rules.
The language, as it previously existed, risked the absurd possibility that individuals within the United States would be permitted to use Tor and other anonymizing techniques to place themselves beyond the reach of any federal magistrate, effectively immunizing themselves from warrants.
And the risk here had actually begun to materialize.
In some ways, the virtual world circumvents the rules of the real world, so some sort of rewrite may be necessary. Next, Susan touches on a problem I speculated about a few months ago [and have now spent ten minutes not finding, drat]:
The international dimensions at issue are undeniably complex. For any number of crimes, but especially the child sexual exploitation offenses at issue in existing warrants, relevant data is increasingly likely to be stored both in multiple jurisdictions and in jurisdictions outside of the primary investigating body. Both offenders and victims are located all over the world. And manifestations of the going dark problem specifically challenge traditional methods of establishing primary jurisdiction and respecting national sovereignty when executing computer searches.
Considering the urgency and international agreement regarding the nature of existing problems, any number of potential solutions might emerge. We might develop reciprocal norms regarding inadvertent violations of sovereignty that include obligations to notify the relevant jurisdiction and cease any search, triggered as as soon as evidence regarding probable jurisdiction is available. International joint investigations—through Interpol, Europol and others—are already commonplace and could provide another mechanism. We might develop international offense-specific rules, allowing for these searches only for commonly-defined serious crimes. We might address these matters in treaties such as the Budapest Convention. The reality may simply be that continually evolving technologies are a moving target, and so we may never reach a stable long-term understanding as laws and institutions adapt and instead cycle through short-term fixes.
Should be interesting. Perhaps computer networks should be considered to be International Waters, so to speak, and investigations would operate under internationally agreed upon rules.
In some ways, that makes me itch.
