Page 24 - July 2015 Issue
P. 24
He went on to explain that the need for warrants as a whole is a means of curbing law enforcement through
independent decision-makers in the Judicial Branch. A warrant requirement brings in the professional judgment
of a neutral Magistrate who has to review the facts of a case before law enforcement can act. The practical
theory is that a Magistrate Judge is not an arm of law enforcement and not likely to attempt to sabotage the 4th
Amendment of the U.S. Constitution. Should the DOJ write their own rules and not seek a warrant for a com-
puter hack; that is a clear violation of the 4th Amendment.
When asked about botnet groupings, and inding illegal activity not speciied in the warrant, like in a case where
law enforcement looks at a botnet for one particular crime but inds another not related to the crime speciied in
the warrant, he stated that there is a legal argument under the Exclusionary Rule, as detailed earlier in this report
if the DOJ/FBI or any law enforcement branch make an arrest for this accidentally found crime.
Mr. Rizer concluded that in order for the rule change to become effective, it has to gain Legislative approval
through the Senate Judiciary Committee before the DOJ can enact this change. As for the arguments about the
warrant not being speciic in the location or District where the warrant will be executed, Mr. Rizer believes that
this can be challenged in the Supreme Court and the merits of each case can be taken accordingly.
Conclusion
In history and in practical application, the basic role of the Federal Government is to secure our national safety
and to guarantee our rights as human beings and citizens of this great Country. That is one Hell of a balanc-
ing act, especially today in the 21st Century with the misuse of computers by real bad people to do really bad
things, such as human traficking, identity theft, and fencing stolen goods. Just this past May, the Associated
Press has reported that the Internal Revenue Service’s computers have been hacked and millions of taxpay-
ers’ tax return information has been stolen. G-d forbid you or myself are on that list of taxpayers who may get
defrauded by these thieves, the idea of inding them, bringing them to justice and gaining restitution from them
would certainly take a front seat over any arguments we may have regarding the DOJ reaching for more power
in their applications for remote access search warrants.
I have to admit that I am still undecided if this rule change is a good thing or a bad thing when it comes to the
balance of enforcing the law and our guarantees under the Bill of Rights. Although I am aware that Law En-
forcement’s past and current efforts to combat cyber-crime is woefully inadequate, perhaps the changes in Rule
41 can give Law Enforcement the wiggle room to carry out a more effective battle against them, and still not
infringe upon our basic Constitutional Rights. Only time will tell.
Jonathan H. Tisk is a licensed Private
Investigator in New York State.
Please visit
www.freelanceinvestigator.blogspot.com
for more information or contact him at
(516) 314-8944 or Email:
jonathantisk@yahoo.com
Photo Courtesy of Jonathan H. Tisk
24
independent decision-makers in the Judicial Branch. A warrant requirement brings in the professional judgment
of a neutral Magistrate who has to review the facts of a case before law enforcement can act. The practical
theory is that a Magistrate Judge is not an arm of law enforcement and not likely to attempt to sabotage the 4th
Amendment of the U.S. Constitution. Should the DOJ write their own rules and not seek a warrant for a com-
puter hack; that is a clear violation of the 4th Amendment.
When asked about botnet groupings, and inding illegal activity not speciied in the warrant, like in a case where
law enforcement looks at a botnet for one particular crime but inds another not related to the crime speciied in
the warrant, he stated that there is a legal argument under the Exclusionary Rule, as detailed earlier in this report
if the DOJ/FBI or any law enforcement branch make an arrest for this accidentally found crime.
Mr. Rizer concluded that in order for the rule change to become effective, it has to gain Legislative approval
through the Senate Judiciary Committee before the DOJ can enact this change. As for the arguments about the
warrant not being speciic in the location or District where the warrant will be executed, Mr. Rizer believes that
this can be challenged in the Supreme Court and the merits of each case can be taken accordingly.
Conclusion
In history and in practical application, the basic role of the Federal Government is to secure our national safety
and to guarantee our rights as human beings and citizens of this great Country. That is one Hell of a balanc-
ing act, especially today in the 21st Century with the misuse of computers by real bad people to do really bad
things, such as human traficking, identity theft, and fencing stolen goods. Just this past May, the Associated
Press has reported that the Internal Revenue Service’s computers have been hacked and millions of taxpay-
ers’ tax return information has been stolen. G-d forbid you or myself are on that list of taxpayers who may get
defrauded by these thieves, the idea of inding them, bringing them to justice and gaining restitution from them
would certainly take a front seat over any arguments we may have regarding the DOJ reaching for more power
in their applications for remote access search warrants.
I have to admit that I am still undecided if this rule change is a good thing or a bad thing when it comes to the
balance of enforcing the law and our guarantees under the Bill of Rights. Although I am aware that Law En-
forcement’s past and current efforts to combat cyber-crime is woefully inadequate, perhaps the changes in Rule
41 can give Law Enforcement the wiggle room to carry out a more effective battle against them, and still not
infringe upon our basic Constitutional Rights. Only time will tell.
Jonathan H. Tisk is a licensed Private
Investigator in New York State.
Please visit
www.freelanceinvestigator.blogspot.com
for more information or contact him at
(516) 314-8944 or Email:
jonathantisk@yahoo.com
Photo Courtesy of Jonathan H. Tisk
24
