Effective December 1, 2016, Rule 41 of the Federal Rules of Criminal Procedure will be amended to expand the reach of the authority of federal judges when they are issuing search warrants. Senator Ron Wyden of Oregon contends that the upcoming changes present a major threat to civil liberties associated with content stored on or accessible through electronic devices.
As modified, Rule 41 will permit federal judges to authorize expanded remote searches of electronic devices including computers and smartphones. Senator Wyden contends that the revised rule will enable federal judges to issue search warrants to permit remote searches of virtually any device, and the material accessible through that device, no matter where the device is located.
Wyden claims that this broad authority would enable a single federal judge to facilitate remote searches of millions of devices and all the materials accessible through those devices. He has proposed legislation which would block this rule modification. His legislative proposal has, however, not yet been enacted, thus the proposed rule changes currently remain on track for the December 1 effective date.
Senator Wyden’s concerns are important and timely. We consistently see examples of government authorities attempting to extend the reach of their digital surveillance activities. This rule modification will almost certainly inflame the controversy surrounding electronic monitoring activities of the U.S. government.
Recent experience suggests that aggressive efforts should be undertaken to enhance oversight of government eavesdropping activities. Now is not the time to ease privacy safeguards applicable to digital content and communications. The new modifications to Rule 41 do not enhance oversight of government surveillance. Instead, they seem to make it significantly easier for government to expand the scope of its digital spying.
Senator Wyden is right to be concerned about the likely impact of the new Rule 41 on American civil liberties. Wyden’s colleagues should join his effort to maintain ,ore reasonable control over digital monitoring by the U.S. government. Electronic privacy currently faces numerous serious threats, and Congress should exercise substantial care to protect civil liberties in the digital environment.