The Justice Department is seeking an amendment proposal that will give the federal government express power to locate and hack into the computers of anyone suspected of criminal activity. However, many organizations, including Google and the American Civil Liberties Union, are concerned that the broad language of the proposal leaves potential for Fourth Amendment violations.
Federal Prosecutors claim that this revision to the Federal Rules of Criminal Procedure has become necessary now that crime can be committed and concealed on the internet under a veil of anonymity and masked location. But in a memo responding to the concerns civil libertarians have raised, the DOJ makes clear that this amendment is seeking statutory legitimacy for practices the federal government is already engaging in practices that are arguably in direct violation of the Fourth Amendment.
The proposal to amend Rule 41 of the federal rules of criminal procedure fails to guarantee the privacy of those who are not under investigation but who have had access to the same computer as the target of a remote warrant. The DOJ claims that this omission is a non-issue because the federal government already overlooks the reasonable right to privacy provided by the Constitution.
“When the government executes a Rule 41 warrant in the physical world, it is not obliged to provide notice to everyone with a potential privacy interest in the place searched,” the recent memo reads.
The DOJ offers its assurances that this rule change won’t violate the Fourth Amendment or increase the potential for privacy infringements by the federal government. Why? Because executing remote search warrants on property with an unknown location is an exercise already practiced by the federal government.
“A number of magistrate judges have issued warrants for remote searches, and those judges have been satisfied that the warrants fulfilled the requirements of the Fourth Amendment,” the DOJ memo reads.
When caught collecting the Associated Press’ phone records in 2013, the DOJ had similar defenses, claiming that they were following the law and internal rules. Given the department’s reputation for lawlessness, one cannot help but consider: If the legal precedence for remote warrants is in place, why would the federal government need to push for this proposed amendment?
Much of the resistance this proposal is receiving from privacy groups is over the broad language of the amendment, which makes it unclear precisely what information the government could access.
Alan Butler, senior counsel at the Electronic Privacy Information Center has inquired “What procedural protections are going to be in place when you do these types of searches? How are they going to be limited?”
The Justice Department admits that this proposal, if enacted, will not be subject to oversight. “Currently, the remote searches that would be applied for under the amended rule are not subject to mandatory internal regulation at the Department,” the recent memo reads.
If there are no internal checks when executing these new warrants, what reason is there to trust that the Justice Department will act within the bounds of the law? When the DOJ refuses to lay out the scope of power that this proposal will give the government, the natural concern is that these techniques will be used with more frequency — especially when considering the department’s history with dubious tactics.
The memo issued by the DOJ states that federal courts have upheld that remote search warrants in the absence of a known location are constitutional. The memo maintains that this amendment proposal does not violate the particularity requirements of the Fourth Amendment or alter the process the federal government must follow in executing warrants.
So, just to clarify: The federal government is already executing remote search warrants in the absence of a known location without any regulation, and the reason this action does not violate the Fourth Amendment is because it is already being done?
An obvious push to increase the government’s powers to tap, record, and monitor our communication, this proposal appears to be just another way to erode the Constitutional protections the DOJ is already ignoring.
Crissy Brown is a political commentator and a grassroots organizer in the Chicagoland area.