8 ms·

I'm just an unfrozen caveman lawyer (and not your lawyer), but if the following is the relevant part then it appears the change here is only that the judge who

I'm just an unfrozen caveman lawyer (and not your lawyer), but if the following is the relevant part then it appears the change here is only that the judge who issues the warrant may be where the victim is located rather than where the servers are located. Normally, a warrant must be issued by a judge sitting where the evidence is to be collected. This seems to say that if you're hiding your location, the judge in the victim's district can issue the warrant instead of having the Catch-22 of not being able to find the right district because you can't track down the server because you don't have a warrant. Magistrate judges issuing warrants is normal -- they do most of the day-to-day evidence work outside of trials. a magistrate judge with authority in any district 8 where activities related to a crime may have 9 occurred has authority to issue a warrant to use 10 remote access to search electronic storage media 11 and to seize or copy electronically stored 12 information located within or outside that district 13 if: 14 (A) the district where the media or information 15 is located has been concealed through 16 technological means (edit: added language from the PDF -- key is the "if") (edit 2: Original headline was "FBI seeks automatic warrants against users of VPN and Tor (p. 338) [pdf]" since it's going to get changed)

declan 12y ago
Yep, as <slapshot> says, the HN headline is in error and should be changed. At the very least the word "automatic" should be deleted. It incorrectly implies lack of discretion on the part of the magistrate judge. Now, perhaps many magistrate judges may be too willing to issue warrants, but that's a different discussion. And there have been plenty of examples where they've raised important issues dealing with electronic surveillance; I highlighted Magistrate Judge Orenstein's opinion re: warrantless cell tracking in this 2005 article: http://news.cnet.com/Police-blotter-Cell-phone-tracking-rejected/2100-1030_3-5846037.html http://news.cnet.com/Police-blotter-Cell-phone-tracking-reje...
- dang 12y ago
  Can anyone please suggest an accurate title? We will change it.
  - DEinspanjer 12y ago
    FBI seeks flexibility for venue of warrants against users of VPN and Tor (p. 338) seems like a reasonable improvement.
    - mkempe 12y ago
      Where "flexibility" means dropping a constitutional requirement. "... no 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." We'll just invade a computer hiding its location, your honor. No, probably not in your district. Sign here.
      - jauer 12y ago
        Or, it is keeping with it by saying that the logical place to be searched is a acceptable description. That seems appropriate for a logical entity (or at least one where the physicality of it is transient and irrelevant).
  - declan 12y ago
    This might work: "U.S. judges propose updating warrants for Tor, remote searches: p338 (2014)" It captures that the source of these recommendations is a judicial conference of federal judges, not the FBI, and that it's dated August 2014. And it mentions the more interesting section (to me) on page 340, which is the fact that warrants could authorize "remote access to search electronic storage and seize or copy electronically stored information" via the Internet. Not perfect, but it seems workable...
    - dang 12y ago
      Thanks! We'll use that unless someone suggests a better one.
- mkempe 12y ago
  If the requirement to issue a warrant is merely that one is using a technological means of hiding one's location, the warrant becomes an automatic consequence of using VPN or Tor. The warrant would be for the FBI to remotely search and grab electronic records. If you use or have used VPN or Tor, then any judge anywhere in the US, could sign a warrant for the FBI to invade your computer.
mkempe 12y ago
Here is a legal analysis written by an attorney in DC: "It’s called Federal Rule 41(b), and the requested change would allow law enforcement to obtain a warrant to search electronic data without providing any specific details as long as the target computer location has been hidden through a technical tool like Tor or a virtual private network. It would also allow nonspecific search warrants where computers have been intentionally damaged (such as through botnets, but also through common malware and viruses) and are in five or more separate federal judicial districts. Furthermore, the provision would allow investigators to seize electronically stored information regardless of whether that information is stored inside or outside the court’s jurisdiction." [1] [1] http://fee.org/freeman/detail/youll-never-guess-whos-trying-to-hack-your-iphone http://fee.org/freeman/detail/youll-never-guess-whos-trying-...
- slapshot 12y ago
  No offense to your friend in DC, but she's obviously not a criminal lawyer. The rest of Rule 41 (of the Federal Rules of Criminal Procedure) still applies. It has about 5 pages of detail about how to get a warrant, what the process is, what the standards are, etc. All this does is change the location where a judge may issue a warrant. http://www.law.cornell.edu/rules/frcrmp/rule_41 http://www.law.cornell.edu/rules/frcrmp/rule_41 Flip through the rest of Rule 41. Then look at the decades (centuries?) of caselaw about warrants.
  - mkempe 12y ago
    I don't know the author so I don't know why you think she's my friend. Under what circumstances would the FBI need a judge in some random district to sign a warrant based on a computer "hiding its location" using VPN or Tor? if the rules necessary to obtain a warrant are currently insufficient, can you please explain how this fixes an existing problem instead of creating a loophole.
    - slapshot 12y ago
      The scenario is simple: under current rules, if you want to search a computer then the only judge who can issue a warrant is a judge where the computer is physically located. That means that it becomes impossible to search a computer behind an anonymizing proxy -- even if the probable cause standard is met and even if there is a way to remotely access that computer. This changes makes it possible for a judge in the victim's location (or anywhere that's been impacted if there are 5 or more victims) to issue the warrant instead. All of the other requirements of a warrant (probable cause, notice, scope, etc.) continue to apply. Read the rest of Rule 41 -- 41(b) only specifies _where_ the judge must be located. None of this says "if you use TOR the 4th amendment doesn't apply to you" -- the edit doesn't even take out the rest of Rule 41. And it doesn't say "random district" -- it's a district impacted by the alleged crime. The author of that post has not read the rest of FRCrP 41. It's a little confusing because the edit doesn't recite the entire Rule (just the dif), but the full text is plenty available via Google.
tptacek 12y ago
Thank you for taking the time to clarify this for us!
engiekay 12y ago
It may be worthwhile for you to review the prepared comments of the many civil liberties groups that analyzed the proposed rule change and raised the same concerns as the DC attorney below. Her analysis, like theirs, is focused on application of the rule change and how it would in effect swallow the other safeguards in the rule and elsewhere. http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2014-11-Criminal-Public-Hearing-Testimony.pdf http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2014...

declan 12y ago

Yep, as <slapshot> says, the HN headline is in error and should be changed. At the very least the word "automatic" should be deleted. It incorrectly implies lack of discretion on the part of the magistrate judge. Now, perhaps many magistrate judges may be too willing to issue warrants, but that's a different discussion. And there have been plenty of examples where they've raised important issues dealing with electronic surveillance; I highlighted Magistrate Judge Orenstein's opinion re: warrantless cell tracking in this 2005 article: http://news.cnet.com/Police-blotter-Cell-phone-tracking-rejected/2100-1030_3-5846037.html http://news.cnet.com/Police-blotter-Cell-phone-tracking-reje...

dang 12y ago
Can anyone please suggest an accurate title? We will change it.
- DEinspanjer 12y ago
  FBI seeks flexibility for venue of warrants against users of VPN and Tor (p. 338) seems like a reasonable improvement.
  - mkempe 12y ago
    Where "flexibility" means dropping a constitutional requirement. "... no 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." We'll just invade a computer hiding its location, your honor. No, probably not in your district. Sign here.
    - jauer 12y ago
      Or, it is keeping with it by saying that the logical place to be searched is a acceptable description. That seems appropriate for a logical entity (or at least one where the physicality of it is transient and irrelevant).
- declan 12y ago
  This might work: "U.S. judges propose updating warrants for Tor, remote searches: p338 (2014)" It captures that the source of these recommendations is a judicial conference of federal judges, not the FBI, and that it's dated August 2014. And it mentions the more interesting section (to me) on page 340, which is the fact that warrants could authorize "remote access to search electronic storage and seize or copy electronically stored information" via the Internet. Not perfect, but it seems workable...
  - dang 12y ago
    Thanks! We'll use that unless someone suggests a better one.
mkempe 12y ago
If the requirement to issue a warrant is merely that one is using a technological means of hiding one's location, the warrant becomes an automatic consequence of using VPN or Tor. The warrant would be for the FBI to remotely search and grab electronic records. If you use or have used VPN or Tor, then any judge anywhere in the US, could sign a warrant for the FBI to invade your computer.

mkempe 12y ago

Here is a legal analysis written by an attorney in DC: "It’s called Federal Rule 41(b), and the requested change would allow law enforcement to obtain a warrant to search electronic data without providing any specific details as long as the target computer location has been hidden through a technical tool like Tor or a virtual private network. It would also allow nonspecific search warrants where computers have been intentionally damaged (such as through botnets, but also through common malware and viruses) and are in five or more separate federal judicial districts. Furthermore, the provision would allow investigators to seize electronically stored information regardless of whether that information is stored inside or outside the court’s jurisdiction." [1] [1] http://fee.org/freeman/detail/youll-never-guess-whos-trying-to-hack-your-iphone http://fee.org/freeman/detail/youll-never-guess-whos-trying-...

slapshot 12y ago
No offense to your friend in DC, but she's obviously not a criminal lawyer. The rest of Rule 41 (of the Federal Rules of Criminal Procedure) still applies. It has about 5 pages of detail about how to get a warrant, what the process is, what the standards are, etc. All this does is change the location where a judge may issue a warrant. http://www.law.cornell.edu/rules/frcrmp/rule_41 http://www.law.cornell.edu/rules/frcrmp/rule_41 Flip through the rest of Rule 41. Then look at the decades (centuries?) of caselaw about warrants.
- mkempe 12y ago
  I don't know the author so I don't know why you think she's my friend. Under what circumstances would the FBI need a judge in some random district to sign a warrant based on a computer "hiding its location" using VPN or Tor? if the rules necessary to obtain a warrant are currently insufficient, can you please explain how this fixes an existing problem instead of creating a loophole.
  - slapshot 12y ago
    The scenario is simple: under current rules, if you want to search a computer then the only judge who can issue a warrant is a judge where the computer is physically located. That means that it becomes impossible to search a computer behind an anonymizing proxy -- even if the probable cause standard is met and even if there is a way to remotely access that computer. This changes makes it possible for a judge in the victim's location (or anywhere that's been impacted if there are 5 or more victims) to issue the warrant instead. All of the other requirements of a warrant (probable cause, notice, scope, etc.) continue to apply. Read the rest of Rule 41 -- 41(b) only specifies _where_ the judge must be located. None of this says "if you use TOR the 4th amendment doesn't apply to you" -- the edit doesn't even take out the rest of Rule 41. And it doesn't say "random district" -- it's a district impacted by the alleged crime. The author of that post has not read the rest of FRCrP 41. It's a little confusing because the edit doesn't recite the entire Rule (just the dif), but the full text is plenty available via Google.

tptacek 12y ago

Thank you for taking the time to clarify this for us!

engiekay 12y ago

It may be worthwhile for you to review the prepared comments of the many civil liberties groups that analyzed the proposed rule change and raised the same concerns as the DC attorney below. Her analysis, like theirs, is focused on application of the rule change and how it would in effect swallow the other safeguards in the rule and elsewhere. http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2014-11-Criminal-Public-Hearing-Testimony.pdf http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2014...