Page 19 - July 2015 Issue
P. 19
Cybercrime Prevention in the 21st Century: Good Policy or a
Violation of Civil Rights? By Jonathan H. Tisk
Photo Courtesy of Jonathan H. Tisk
I came across a blog back in March of this year regarding a proposed change in how the United States
Department of Justice will be gaining search warrants that can seriously infringe upon our Fourth Amendments
Rights. The blog spoke of the Federal Bureau of Investigations using tracking malware on computers
“worldwide” to determine any alleged criminal activity. The blog was very vague in detail and implementation,
and high on stoking outrage at this unidentiied proposal.
Although I never take anything factual from blogs as a general rule, it intrigued me nonetheless. Unfortunately,
according to Gallup polls, only 27% of the American population has any trust in our government, which
probably answered my own question as to why this blog interested me. To add insult to injury, the Department
of Justice’s reputation has taken several hits as of late, from the Fast and Furious gun running debacle, spying
on the Associated Press, and culminating with Attorney General Eric Holder’s Contempt of Congress.
Being the professionals that we are, I don’t need to preach about not making a decision or judgement based on
emotion or pure speculation. I decided to investigate the facts regarding this proposed procedural change to
how the DOJ and the FBI will be iling for search warrants. I readily admit that I am not a legal scholar, but I
feel comfortable in adding to the debate and allowing the Reader to make their own decisions if this rule change
is good cybercrime prevention of a clear violation of our Civil Rights.
Proposed Amendment to Rule 41 of the Federal Rules of Criminal Procedure:
As with all investigations, the best place to start is at the source. According to the Federal Rules of Criminal
Procedure, Rule 41 grants a Magistrate Judge the authority to issue search warrants based upon evidence of
probable cause provided by a Federal Law Enforcement Oficer. The search warrant, once granted, allows
Federal Investigators to seize property that will provide evidence of criminal activity, recover contraband, and/
or property designed for use in the commission of a criminal act.
Rule 41, as it stands now, grants Magistrate Judges the authority to issue search warrants for electronically
stored information, either seizing or copying the information remotely. The word “remotely” is a politically
correct way to say hacking into a perp’s computer. The rule was last amended in 1997 to allow warranted
hacking of a perp’s computer.
Rule 41 under Subdivision (f)(1)(C) states that reasonable efforts are to be made by the Investigator executing
the warrant to provide notice of the search and/or seizure to the person whose information was seized by remote
19
Violation of Civil Rights? By Jonathan H. Tisk
Photo Courtesy of Jonathan H. Tisk
I came across a blog back in March of this year regarding a proposed change in how the United States
Department of Justice will be gaining search warrants that can seriously infringe upon our Fourth Amendments
Rights. The blog spoke of the Federal Bureau of Investigations using tracking malware on computers
“worldwide” to determine any alleged criminal activity. The blog was very vague in detail and implementation,
and high on stoking outrage at this unidentiied proposal.
Although I never take anything factual from blogs as a general rule, it intrigued me nonetheless. Unfortunately,
according to Gallup polls, only 27% of the American population has any trust in our government, which
probably answered my own question as to why this blog interested me. To add insult to injury, the Department
of Justice’s reputation has taken several hits as of late, from the Fast and Furious gun running debacle, spying
on the Associated Press, and culminating with Attorney General Eric Holder’s Contempt of Congress.
Being the professionals that we are, I don’t need to preach about not making a decision or judgement based on
emotion or pure speculation. I decided to investigate the facts regarding this proposed procedural change to
how the DOJ and the FBI will be iling for search warrants. I readily admit that I am not a legal scholar, but I
feel comfortable in adding to the debate and allowing the Reader to make their own decisions if this rule change
is good cybercrime prevention of a clear violation of our Civil Rights.
Proposed Amendment to Rule 41 of the Federal Rules of Criminal Procedure:
As with all investigations, the best place to start is at the source. According to the Federal Rules of Criminal
Procedure, Rule 41 grants a Magistrate Judge the authority to issue search warrants based upon evidence of
probable cause provided by a Federal Law Enforcement Oficer. The search warrant, once granted, allows
Federal Investigators to seize property that will provide evidence of criminal activity, recover contraband, and/
or property designed for use in the commission of a criminal act.
Rule 41, as it stands now, grants Magistrate Judges the authority to issue search warrants for electronically
stored information, either seizing or copying the information remotely. The word “remotely” is a politically
correct way to say hacking into a perp’s computer. The rule was last amended in 1997 to allow warranted
hacking of a perp’s computer.
Rule 41 under Subdivision (f)(1)(C) states that reasonable efforts are to be made by the Investigator executing
the warrant to provide notice of the search and/or seizure to the person whose information was seized by remote
19
