US courts may soon have the power to authorize remote ‘hacking’ searches of computers across the country and even abroad. The Supreme Court has approved a change to rules about the scope of such searches.
Unlike most Supreme Court rulings, this isn’t on a specific (precedent-setting) case. Instead the court was required to approve a change to one of the basic rules of federal criminal procedure. The way such an approval works means Congress has until December 1 to vote to block the move or it will automatically take effect.
The rule in question is rule 41, which governs the procedure and powers of judges issuing search warrants. At the moment a judge can only issue an order applying to a search that takes place within the geographic area of their jurisdiction.
The FBI and Department of Justice argued that restriction was too tight when it came to remote searches that effectively involve hacking into a suspect’s computer via the Internet. That argument is based on the idea that the officials carrying out the search may be thousands of miles away from the physical computer being accessed; in some cases the suspect is known but their physical location is not.
Under the revised rule a judge could “issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district.” Other aspects of the rule such as the requirement for probable cause are unchanged.
Critics of the rule change, including the American Civil Liberties Union and Google, say that it would violate the Fourth Amendment by allowing unreasonable searches. They also warn of legal confusion in cases where a judge either knowingly or unknowingly authorizes a remote search on a computer in a foreign country outside of US legal jurisdiction.
Another argument presented against the change is procedural, namely that such a substantial change in legal principle should have been debated and actively approved by Congress before it went for Supreme Court approval.
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