Page 21 - July 2015 Issue
P. 21
When the DOJ proposal came out, there have been many vocal critics of the change in procedure. According to
the Associated Press, hearings were held before the Senate Judiciary Committee’s Privacy, Technology Subcom-
mittee on November 13, 2013. Among the people who testiied before the subcommittee about the proposal
was Richard Dalgado, the Director of Law Enforcement and Information Security for Google, Inc. Mr. Salgado
stated that the proposal is too broad and could have serious repercussions.
“While the proposed amendment ‘purports’ not to substantively expand the government’s search powers under
Rule 41, it in effect does so anyway. The proposed amendment is a substantive change that imposes upon the
constitutional rights of targets.”
Mr. Salgado also stated that the changes could easily lead to remote searches of computers outside of the United
States’ jurisdiction and that even within our jurisdiction; millions of Americans affected by cybercrime by being
unknowingly attached to a botnet would have to go through multiple intrusive hacks as law enforcement tries
to identify an anonymous suspect. He also stated that if the changes to Rule 41 is to be enacted, it should come
through Congress and not through a DOJ rule change because the changes in the rule is too dramatic and has
huge ramiications to U.S. Law and International Law to be handled outside of the Legislative Branch.
Besides Mr. Salgado, the Subcommittee also received testimony and correspondence from thirty other sources,
including the ACLU, the Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press
that mirror Google’s concerns regarding the Constitutional, legal and geopolitical concerns.
In the DOJ’s response to public comments concerning the hearings:
“The existing rules already allow government to obtain and execute such warrants when the District of the tar-
geted computer is known. Thus, the issue before the Committee is not whether to allow warrants to be executed
by remote search; it is whether such warrants should be precluded in cases involving anonymizing technology
due to a lack of a clearly authorized venue to consider warrant applications.
With the rise of techniques that make it easy for criminals…to hide their true locations, lawfully authorized
remote access has become increasingly important to protect people from predators and solve serious crimes.”
An excellent discourse written by Associate Member of the University of Cincinnati Law Review, Jon Kelly
took the argument against the rule change even further:
“The Main objections stem from the absence of language that would limit the scope of searches under the new
rule or to set a requirement of speciicity needed to ensure constitutional protections and protect international re-
lations. The Fourth Amendment requires that warrants specify the ‘place to be searched, and the person(s) and
things seized.’ This speciicity requirement is understandably compromised when a federal agency’s warrant
request does not specify the location of the search, the method in which the search will take place or the scope
of such a search.”
Mr. Kelly also strongly stated that the rules vague language does not address concerns that Rule 41 will allow
searches of innocent computers that are linked to a botnet, and the broadness of the language does not address
any potential illicit activity on the botnet computers that is independent of what the warrant would allow for.
Again, the DOJ’s response seemed lackluster when they stated that the rule change must be judged on a case by
case basis when and if it is challenged in the Courts.
21
the Associated Press, hearings were held before the Senate Judiciary Committee’s Privacy, Technology Subcom-
mittee on November 13, 2013. Among the people who testiied before the subcommittee about the proposal
was Richard Dalgado, the Director of Law Enforcement and Information Security for Google, Inc. Mr. Salgado
stated that the proposal is too broad and could have serious repercussions.
“While the proposed amendment ‘purports’ not to substantively expand the government’s search powers under
Rule 41, it in effect does so anyway. The proposed amendment is a substantive change that imposes upon the
constitutional rights of targets.”
Mr. Salgado also stated that the changes could easily lead to remote searches of computers outside of the United
States’ jurisdiction and that even within our jurisdiction; millions of Americans affected by cybercrime by being
unknowingly attached to a botnet would have to go through multiple intrusive hacks as law enforcement tries
to identify an anonymous suspect. He also stated that if the changes to Rule 41 is to be enacted, it should come
through Congress and not through a DOJ rule change because the changes in the rule is too dramatic and has
huge ramiications to U.S. Law and International Law to be handled outside of the Legislative Branch.
Besides Mr. Salgado, the Subcommittee also received testimony and correspondence from thirty other sources,
including the ACLU, the Electronic Frontier Foundation and the Reporters Committee for Freedom of the Press
that mirror Google’s concerns regarding the Constitutional, legal and geopolitical concerns.
In the DOJ’s response to public comments concerning the hearings:
“The existing rules already allow government to obtain and execute such warrants when the District of the tar-
geted computer is known. Thus, the issue before the Committee is not whether to allow warrants to be executed
by remote search; it is whether such warrants should be precluded in cases involving anonymizing technology
due to a lack of a clearly authorized venue to consider warrant applications.
With the rise of techniques that make it easy for criminals…to hide their true locations, lawfully authorized
remote access has become increasingly important to protect people from predators and solve serious crimes.”
An excellent discourse written by Associate Member of the University of Cincinnati Law Review, Jon Kelly
took the argument against the rule change even further:
“The Main objections stem from the absence of language that would limit the scope of searches under the new
rule or to set a requirement of speciicity needed to ensure constitutional protections and protect international re-
lations. The Fourth Amendment requires that warrants specify the ‘place to be searched, and the person(s) and
things seized.’ This speciicity requirement is understandably compromised when a federal agency’s warrant
request does not specify the location of the search, the method in which the search will take place or the scope
of such a search.”
Mr. Kelly also strongly stated that the rules vague language does not address concerns that Rule 41 will allow
searches of innocent computers that are linked to a botnet, and the broadness of the language does not address
any potential illicit activity on the botnet computers that is independent of what the warrant would allow for.
Again, the DOJ’s response seemed lackluster when they stated that the rule change must be judged on a case by
case basis when and if it is challenged in the Courts.
21
