4 ms·

Completely wrong. Among other things it codifies the use of general warrants by the FBI, one of the prime reasons we went to war in 1776.

tzs 10y ago
Where, specifically? For your reference, here is Rule 41 with the differences marked: https://www.justsecurity.org/wp-content/uploads/2014/09/proposed-amendment-rule-41.pdf https://www.justsecurity.org/wp-content/uploads/2014/09/prop...
- belovedeagle 10y ago
  In general I think the problems with this change have been slightly overstated. However, GP is correct. The Fourth Amendment to the US Constitution provides in relevant part: > [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A general warrant is one which does not "particularly describ[e] the place to be searched, and the persons or things to be seized". The amended rule provides in relevant part > A magistrate judge [...] has authority to issue a warrant to use remote access to search electronic storage media [of which the location] has been concealed through technological means. Now, one doesn't have to be a constitutional scholar to see that "the place to be searched" hasn't been interpreted recently (if ever) to mean "latitude and longitude". However, there's a valid concern that the inability to even place the "where" to a particular jurisdiction is a massive weakening of the requirement to "particularly describ[e]". It may indeed be so weak that the result can be fairly called a "general warrant". How could the warrant be written otherwise? What information could it contain? I speculate the "description" will amount, in practice, to "unknown hard drive in unknown location, possibly containing X contents". That is a general warrant, because no hard drive fails to meet those criteria.

tzs 10y ago

Where, specifically? For your reference, here is Rule 41 with the differences marked: https://www.justsecurity.org/wp-content/uploads/2014/09/proposed-amendment-rule-41.pdf https://www.justsecurity.org/wp-content/uploads/2014/09/prop...

belovedeagle 10y ago
In general I think the problems with this change have been slightly overstated. However, GP is correct. The Fourth Amendment to the US Constitution provides in relevant part: > [N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. A general warrant is one which does not "particularly describ[e] the place to be searched, and the persons or things to be seized". The amended rule provides in relevant part > A magistrate judge [...] has authority to issue a warrant to use remote access to search electronic storage media [of which the location] has been concealed through technological means. Now, one doesn't have to be a constitutional scholar to see that "the place to be searched" hasn't been interpreted recently (if ever) to mean "latitude and longitude". However, there's a valid concern that the inability to even place the "where" to a particular jurisdiction is a massive weakening of the requirement to "particularly describ[e]". It may indeed be so weak that the result can be fairly called a "general warrant". How could the warrant be written otherwise? What information could it contain? I speculate the "description" will amount, in practice, to "unknown hard drive in unknown location, possibly containing X contents". That is a general warrant, because no hard drive fails to meet those criteria.