Edward Snowden: The Rule 41 Amendment Returns Us to the 1760s

Edward Snowden believes the amendments to Rule 41 of the Federal Rules of Criminal Procedure, which regulates legal search and seizure, has returned us to the days when America was ruled by a tyrant. “The [FBI] is now openly issuing the general warrants that, in 1760, led John Adams to first dream of independence,” he wrote in a tweet. For privacy advocates, like Snowden, this change flies in the face of the rights our founding fathers fought to secure. For law enforcement officials, this amendment is a necessary alteration which fits the digital age. For American citizens, it’s a double-edge sword.

The changes made to Rule 41 took effect on December 1. The new version will allow federal agencies to obtain a warrant for “remote-access” searches and seizures of digital materials. Rule 41 now reads:

“A magistrate judge with authority in any district where activities related to a crime may have occurred has authority to 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: (A) the district where the media or information is located has been concealed through technological means; or (B) in an investigation of a violation of 18 U.S.C. § 1030(a)(5), the media are protected computers that have been damaged without authorization and are located in five or more districts.”

What concerns many is now that federal agencies have this power, how will it be used?There are two real-world scenarios which may offer some insight. 

In 2015, the FBI took a child pornography website on the Dark Web and used it in a sting operation. Malware was deployed to any computer visiting the site, which resulted in the identification of over 1,500 pedophiles. This operation was done on a single warrant, which defense lawyers successfully argued was invalid.

The amendment to Rule 41 addresses this issue. Today, a magistrate judge has the authority to issue a warrant outside of their district, requiring no knowledge of the location of the computers being searched.

What concerns many privacy advocates and what should concern many citizens is innocent bystanders can become collateral in these searches. Take the victims of the Mirai botnet attack, in which hackers took advantage of weak security protocols on routers, security cameras, and more IoT devices. While innocent of the crime, the new rule would allow federal agencies to copy all material on these hacked devices.

Government access to the computers of botnet victims also raises serious privacy concerns, as a wide range of sensitive, unrelated personal data could well be accessed during the investigation,” the Electronic Frontier Foundation, an internet privacy group, wrote in a blog post. “This is a dangerous expansion of powers, and not something to be granted without any public debate on the topic.

Snowden believes Rule 41 flies in the face of the Fourth Amendment. To give some historical context, back in the 1760s,British authorities were allowed to carry out searches of anyone at anytime, regardless of whether or not they were suspected of a crime. John Adams sought to make sure these invasive searches and seizures were never carried out again when drafting the Fourth Amendment. In it, he wrote “a warrant must specify the “persons or objects of search, arrest, or seizure.”

Rule 41 has expanded the power of the Department of Justice. It’s an attempt at making law enforcement effective in a digital age. Whether the spirit of the Fourth Amendment will be maintained under this newly amended rule will be put to the test.