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Clegg: A small surveillance change with a big impact

BY CHRIS CLEGG | FEBRUARY 24, 2015 5:00 AM

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While there are some very well known laws in the United States such as, say, the American Disabilities Act or the Civil Rights Act of 1964, there are others that are not so famous. Rule 41 of the Federal Rules of Criminal Procedure would fall under the latter category.

Specifically, Rule 41 pertains to the codes that govern search and seizure.  From “scope and definitions” to “executing and returning the warrant,” this rule lays out how our government is to go about issuing, obtaining, and using warrants.

Rule 41 could be subject to change soon according to nationaljournal.com. “Last year, the Justice Department petitioned a judicial advisory committee to amend the rule to allow judges to approve warrants outside their jurisdictions or in cases where authorities are unsure where a computer is located,” read the report. The proposed change, along with lingering sentiment from the whole NSA debacle two years ago immediately sparked a debate about the breaching of Fourth Amendment rights.

Google, the technological super-giant that connects and provides services to billions of people, was not overjoyed at the proposed change. “The proposed amendment raises serious constitutional concerns,” Richard Salgado, the director of Google’s Law Enforcement and Information Security Department, said in a statement on the government’s regulations website Feb. 17. The adaption of such a change, he said, “raises a number of monumental and highly complex constitutional, legal, and geopolitical concerns.” But what would actually change with the amendment?

The literal language of the change (dealing with Rule 41, Section B, Article 6) states that a judge can “issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if: the media or information are hidden by technology or if the media are protected computers that have been damaged without authorization and are located in five or more districts.”

Essentially (for anyone who is reading without a law degree), this would grant the power to a judge to operate outside of her or his jurisdiction when it comes to obtaining files from computers and the Internet. While the idea of granting judges power outside of their jurisdiction is troubling to some, Deputy Assistant Attorney General David Bitkower disagrees.

“The proposal would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law,” he said in a statement on the same government site. He reinforced the notion that people “appear to be misreading the text of the proposal or misunderstanding current law.”

But are people misreading as much as Bitkower contends? Is the amendment to Rule 41 simply adapting to the technological age we live in, or is it a ploy to broaden government surveillance without informing the public?

It is my opinion that the amendment to Rule 41 should not be adopted because of the broad amount of power it gives to judges. Not only would the proposed changes allow judges to operate outside of their jurisdiction, which, in itself, is a dangerous precedent to set, but it could also corrupt judges into abusing their power.

Much like employees at the NSA admitting to using their access to surveillance to spy on ones close to them, judges could issue warrants accomplishing the same ends. This is not to say that current search and seizure laws don’t need to be readdressed and adapted to fit a modern age; I just don’t think that such a swift and unnoticed change is the way to do it.


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