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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

by 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.
  - dragonwriter 12y ago
    > 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. The current rules require the warrant to be issued by a court in the jurisdiction in which the data is located. If the location has been hidden by technological means, the appropriate district cannot be determined. Note that this does not change in one whit what information must be provided to support a warrant (except that it no longer requires information about the location and now requires information about the fact that the location is technologically obscured), or the specifity required of a warrant, or the discretion of the judge in issuing a warrant -- it just says that if the location is obscured, then a judge in any district can issue the warrant. Since it doesn't change the substantive requirements, it doesn't create any kind of loophole. All it does is remove the possibility that the appropriate court to issue a warrant may be impossible to determine. (There's also a change which allows a narrow set of multidistrict warrants to be issued by a judge in any district rather than requiring separate judges in each district, but this only applies when the computers being searched are the ones damaged by an attack being investigated, and they are located in more than five districts.)
- belovedeagle 12y ago
  > All this does is change the location where a judge may issue a warrant. This is patently untrue based on a reading of the document. This proposed amendment also changes the command "must give a copy of the warrant" to "must make reasonable efforts", which seems to me to be a bigger issue although others seem to be ignoring it. Basically the courts would like to say, "well, we aren't really sure how one leaves notice of service electronically, so, whatever, we won't actually require it."
dragonwriter 12y ago
Its crappy legal analysis; the proposal does not specify the required details, but that doesn't mean it allows warrants to be issued "without providing any specific details" -- because the proposal does not repeal the Fourth Amendment, from whence the requirement for specificity originates. From the "Committee Note" on the provision (p. 341 of the document): The amendment does not address constitutional questions, such as the specificity of description that the Fourth Amendment may require in a warrant for remotely searching electronic storage media or seizing or copying electronically stored information, leaving the application of this and other constitutional standards to ongoing case law There's a difference between recognizing that the Fourth Amendment provides the requirements for specific details and allowing warrants with no specific details.

by mkempe 12y ago

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.
- dragonwriter 12y ago
  > 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. The current rules require the warrant to be issued by a court in the jurisdiction in which the data is located. If the location has been hidden by technological means, the appropriate district cannot be determined. Note that this does not change in one whit what information must be provided to support a warrant (except that it no longer requires information about the location and now requires information about the fact that the location is technologically obscured), or the specifity required of a warrant, or the discretion of the judge in issuing a warrant -- it just says that if the location is obscured, then a judge in any district can issue the warrant. Since it doesn't change the substantive requirements, it doesn't create any kind of loophole. All it does is remove the possibility that the appropriate court to issue a warrant may be impossible to determine. (There's also a change which allows a narrow set of multidistrict warrants to be issued by a judge in any district rather than requiring separate judges in each district, but this only applies when the computers being searched are the ones damaged by an attack being investigated, and they are located in more than five districts.)
belovedeagle 12y ago
> All this does is change the location where a judge may issue a warrant. This is patently untrue based on a reading of the document. This proposed amendment also changes the command "must give a copy of the warrant" to "must make reasonable efforts", which seems to me to be a bigger issue although others seem to be ignoring it. Basically the courts would like to say, "well, we aren't really sure how one leaves notice of service electronically, so, whatever, we won't actually require it."

dragonwriter 12y ago

Its crappy legal analysis; the proposal does not specify the required details, but that doesn't mean it allows warrants to be issued "without providing any specific details" -- because the proposal does not repeal the Fourth Amendment, from whence the requirement for specificity originates. From the "Committee Note" on the provision (p. 341 of the document): The amendment does not address constitutional questions, such as the specificity of description that the Fourth Amendment may require in a warrant for remotely searching electronic storage media or seizing or copying electronically stored information, leaving the application of this and other constitutional standards to ongoing case law There's a difference between recognizing that the Fourth Amendment provides the requirements for specific details and allowing warrants with no specific details.