Page 23 - July 2015 Issue
P. 23
Another excellent argument that I have read against the changes proposed for Rule 41 was written by a visiting
Professor at UC Hastings College of Law located in San Francisco, CA, Ahmed Ghappour. He is an attorney
that litigates constitutional issues that arise in espionage, cyber security and counter-terrorism prosecutions. He
wrote very passionately about international repercussions from this proposed change in the rule:
“The DOJ commentary explicitly states that the proposal does not seek power to extend search authority beyond
the United States…The latter standard seems to be a signiicant loophole in the DOJ’s own formulation of the
approach, particularly give the global nature of the Internet.”
Mr. Ghappour targeted the potential risks of creating an international incident by allowing the DOJ/FBI to
receive a network access search warrant for a computer that uses anonymizing software, such as TOR, citing
that over 85% of computers directly connected to the TOR Network are located outside the United States, where
we would have no criminal jurisdiction.
Mr. Ghappour also cited an international incident that occurred between the U.S. and Russia in 2002. Russia’s
Federal Security Service iled criminal charges in the UN’s International Court of Justice against a FBI Agent
for “illegally accessing” computer servers located in Chelyabinsk, Russia to seize evidence of criminal activity
by Russian hackers, who were arrested in Seattle, WA. The FBI gained access to the overseas server using log-
in information that they obtained from one of the suspects in custody.
Although there are no prohibitions on cyber-espionage in international law, Mr. Ghappour stated that given the
public nature of the U.S. Criminal Justice System, he believes that U.S. Authorities can face prosecution from a
“violated country’s” domestic criminal law if the DOJ proposal is approved. To view Mr. Ghappour’s article in
its entirety, please visit www.justsecurity.org
When In Doubt, Find an Expert in the Field:
Arthur Rizer, Associate Professor of Law, University of West Virginia.
Photo courtesy of http://law.wvu.edu.
To be fair, I researched Rule 41 and the proposed changes for any positive news, but alas, I found not one
single legal article, news story or blog posting that would defend the rule change. I decided to reach out to an
old friend of mine who is now currently an Associate Dean and Professor of Law at the University of West Vir-
ginia, Anne LoFaso, who in turn gave me the contact information for her associate, Professor of Law at UVA,
Arthur Rizer, whom she said is an expert at Constitutional Law, and has given interviews regarding the law to
Hufington Post and to Glenn Beck. I called Mr. Rizer in early May and after brief introductions, we got down
to business. Mr. Rizer stated that he has researched the change to Rule 41 and although he inds that the rule
change in itself does not meet the “spirit” of the 4th Amendment which guarantees our rights against unlawful
search and seizure, the change is lawful and Constitutional.
23
Professor at UC Hastings College of Law located in San Francisco, CA, Ahmed Ghappour. He is an attorney
that litigates constitutional issues that arise in espionage, cyber security and counter-terrorism prosecutions. He
wrote very passionately about international repercussions from this proposed change in the rule:
“The DOJ commentary explicitly states that the proposal does not seek power to extend search authority beyond
the United States…The latter standard seems to be a signiicant loophole in the DOJ’s own formulation of the
approach, particularly give the global nature of the Internet.”
Mr. Ghappour targeted the potential risks of creating an international incident by allowing the DOJ/FBI to
receive a network access search warrant for a computer that uses anonymizing software, such as TOR, citing
that over 85% of computers directly connected to the TOR Network are located outside the United States, where
we would have no criminal jurisdiction.
Mr. Ghappour also cited an international incident that occurred between the U.S. and Russia in 2002. Russia’s
Federal Security Service iled criminal charges in the UN’s International Court of Justice against a FBI Agent
for “illegally accessing” computer servers located in Chelyabinsk, Russia to seize evidence of criminal activity
by Russian hackers, who were arrested in Seattle, WA. The FBI gained access to the overseas server using log-
in information that they obtained from one of the suspects in custody.
Although there are no prohibitions on cyber-espionage in international law, Mr. Ghappour stated that given the
public nature of the U.S. Criminal Justice System, he believes that U.S. Authorities can face prosecution from a
“violated country’s” domestic criminal law if the DOJ proposal is approved. To view Mr. Ghappour’s article in
its entirety, please visit www.justsecurity.org
When In Doubt, Find an Expert in the Field:
Arthur Rizer, Associate Professor of Law, University of West Virginia.
Photo courtesy of http://law.wvu.edu.
To be fair, I researched Rule 41 and the proposed changes for any positive news, but alas, I found not one
single legal article, news story or blog posting that would defend the rule change. I decided to reach out to an
old friend of mine who is now currently an Associate Dean and Professor of Law at the University of West Vir-
ginia, Anne LoFaso, who in turn gave me the contact information for her associate, Professor of Law at UVA,
Arthur Rizer, whom she said is an expert at Constitutional Law, and has given interviews regarding the law to
Hufington Post and to Glenn Beck. I called Mr. Rizer in early May and after brief introductions, we got down
to business. Mr. Rizer stated that he has researched the change to Rule 41 and although he inds that the rule
change in itself does not meet the “spirit” of the 4th Amendment which guarantees our rights against unlawful
search and seizure, the change is lawful and Constitutional.
23
