AAAG Raman Letter to Judge Raggi Re Rule 41 Amendment

8/12/2019 AAAG Raman Letter to Judge Raggi Re Rule 41 Amendment

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U.S.Department of Justice

CriminalDivision

Assistant Attorney General Washington, D.C. 20530

September 18,2013

TheHonorableReenaRaggi

Chair,AdvisoryCommittee on theCriminalRules

704SUnitedStatesCourthouse

225Cadman PlazaEast

Brooklyn,N Y 11201-1818

DearJudgeRaggi:

TheDepartment of Justice recommends an amendment to Rule 41 of the Federal Rules ofCriminalProcedure to update the provisions relating to theterritoriallimitsforsearchesof

electronicstoragemedia. The amendment wouldestablish a court-supervisedframework

tluoughwhichlaw enforcement can successfully investigate and prosecute sophisticated Internet

crimes, by authorizing a court in adistrictwhere activities related to a crimehaveoccurred to

issuea warrant - to be executed via remoteaccess- forelectronicstoragemedia and

electronicallystored informationlocatedwithinor outside thatdistrict.The proposed amendment

wouldbetterenablelaw enforcement to investigate and prosecute botnets and crimes involving

Internet anonymizing technologies, bothwhichposesubstantialthreatsto members ofthe public.Background

Rule 41(b) of the Federal Rules ofCriminalProcedure authorizes magistrate judges to

issuesearchwarrants. In most circumstances, searchwarrants issuefor property that is located

withinthe judge's district. Currently, Rule 41(b) authorizesout-of-districtsearchwarrants for :

(1)property i n thedistrictwhen the warrant is issued that might be moved outside the district

beforethe warrant is executed; (2) tracking devices,whichmay be monitored outside the district

i f installedwithinthedistrict; (3) investigations of domestic or internationalterrorism;and

(4)property located in aUnitedStatesterritoryor aUnitedStatesdiplomatic or consular mission.

Rule41(b) doesnotdirectlyaddressthe special circumstances that arise whenofficersexecutesearchwarrants, via remoteaccess,over modern communications networks such as the

Internet. Rule41 should be amended toaddresstwo increasingly common situations: (1) wherethewarrantsufficientlydescribesthe computer to besearchedbut thedistrictwithinwhichthat

computeris located is unknown, and (2) where the investigation requires law enforcement to

coordinatesearchesof numerous computers i n numerous districts.


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Thefirstofthesecircumstances - where investigators canidentifythe target computer,

but not the district inwhichi t is located - is occurringwithgreater frequency in recent years.Criminalsare increasingly using sophisticated anonymizing technologies when theyengagein

crimeover the Internet. For example, a fraudster exchanging emailwithan intendedvictimor a

childabusersharingchildpornography over the Internet may use proxy services designed to hide

his or her true IPaddress. Proxy services functionas intermediaries for Internet

communications: when one communicates through an anonymizing proxy service, the

communicationspassthrough theproxy,and the recipient of the communications receives the

proxy's IPaddress,rather than the originator's true IPaddress. There is a substantial public

interestin catching and prosecuting criminals who use anonymizingtechnologies, but locating

them can be impossible for law enforcementabsentthe abilityto conduct a remotesearcho f the

criminal'scomputer. Law enforcement may insomecircumstances employ software thatenables

itthrough a remotesearchto determine the true IPaddressor other identifyinginformationassociatedwiththe criminal's computer.

Yeteven when investigators can satisfy the Fourth Amendment's threshold for obtaining

awarrantforthe remotesearch- by describing the computer to besearchedwithparticularityanddemonstrating probablecauseto believe that the evidence sought via the remotesearchwill

aidin a particular apprehension orconvictionfor a particular offense - a magistrate judge may

decline toissuethe requested warrant. For example, in afraudinvestigation,one magistrate

judge recently ruled that an applicationfora warrant for a remotesearchdid not satisfy the

territorialjurisdictionrequirements o f Rule4 1 . See In re Warrant toSearch aTarget Computerat Premises Unknown, F. Supp. 2d , 2013 WL 1729765 (S.D. Tex. Apr. 22, 2013)

(notingthat "there maywellbe a goodreasonto update theterritorial limitsof that rule inlightofadvancing computersearchtechnology").

Second,criminals are usingmultiplecomputers in many districts simultaneously as part

ofcomplexcriminalschemes,andeffectiveinvestigation and disruption oftheseschemesoften

requiresremoteaccessto Internet-connected computers in manydifferent districts. For example,

theftsin onedistrictmay befacilitatedby sophisticated attacks launchedfromcomputers in

multipleotherdistricts. An increasingly commonformo fonlinecrime involves the surreptitious

infectionofmultiplecomputerswithmalicious software thatmakesthem parto f a "botnet" - acollectiono f compromised computers under the remote command and control of acriminal.

Botnetsmayrangein sizefromhundreds tomillionsof compromised computers, including

home,business,and governmentsystems.Botnets are asignificantthreat to thepublic: they areusedto conduct large-scale denial of service attacks, steal personal andfinancialdata,anddistributemalware designed to invade the privacy ofusersofthe host computers.

Effectiveinvestigations ofthesesophisticated crimesoftenrequire law enforcement to act

inmanyjudicialdistricts simultaneously. Under the current Rule 4 1 however, except incasesofdomesticor international terrorism, investigators may need to coordinate withagents,


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prosecutors,and magistrate judges in everyjudicialdistrict inwhich the computers are loiowntobelocated to obtain warrants authorizing the remoteaccessofthosecomputers. For example, alargebotnet investigation islikelyto require action i n all 94 districts, but coordinating 94

simultaneouswarrants in the 94 districtswouldbe impossible as a practical matter. At a

minimum,requiring so many magistrate judges to reviewvirtuallyidentical probablecause

affidavitswastesjudicialand investigativeresourcesandcreatesdelays that mayhaveadverseconsequencesforthe investigation. Authorizinga court in adistrictwhere activities related to a

crimehaveoccurred toissuea warrant for electronicstoragemediawithinor outside the district

wouldbetter alignRule41 withthe extent ofconstitutionallypermissible warrants andremoveanunnecessaryobstruction currentlyimpairingthe abilityo flawenforcement to investigate

botnetsand othermulti-districtInternet crimes.

Thus,whilethe Fourth Amendment permits warrants toissuefor remoteaccesstoelectronicstoragemedia or electronically storedinformation,Rule41 s languagedoesnotanticipatethosetypes of warrants in allcases.Amendment isnecessarytoclarifythe procedural

rulesthat the government shouldfollowwhen it wishes to applyforthesetypes of warrant.

Languageof Proposed Amendment

Our proposed amendment includes two parts. First, we propose adding thefollowing

languageat the end of subsection (b):

and(6) a magistrate judgewithauthority in anydistrictwhere activities related

toa crime mayhaveoccurred has authority toissuea warrant, to be executed viaremoteaccess,for electronicstoragemedia or electronically storedinformation

locatedwithinor outside that district.

Second,we propose adding thefollowinglanguage at the end of subsection

(f)(1)(C):

Inacaseinvolvinga warrantforremoteaccessto electronicstoragemedia

orelectronically stored information,theofficerexecuting the warrant must

makereasonableeffortstoservea copy of the warrant on an owner or operator

ofthestoragemedia. Service may be accomplished by anymeans,including

electronicmeans,reasonably calculated to reach the owner or operator ofthestoragemedia. Uponrequestof the government, the magistrate judge may delay

notice as provided in Rule41(f)(3).


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Discussion of Proposed Amendment

Theproposed amendment authorizes a courtwithjurisdictionover the offense being

investigated toissuea warrant to remotelysearcha computer i f activitiesrelated to the crime

under investigationhaveoccurred in the court's district. In other circumstances, the Rules or

federal law recognize that i t can be appropriate to give magistrate judges nationwide authority to

issuesearchwarrants. For example, in terrorism investigations, the current Rule 41(b)(3) allows

amagistrate judge "inany district inwhichactivitiesrelated to the terrorism mayhaveoccurred"

toissuea warrant"fora person or propertywithinor outside thatdistrict." This approach is also

similarto the current rule for a warrantrequiringcommunication service providers to disclose

electronic communications: a courtwith"jurisdictionover the offense being investigated" can

issuesuch a warrant. See18 U.S.C. 2703(a) &2711(3)(A)(I); United States v. Bansal,663F.3d 634, 662 (3dCir.2011); United States v.Berkos 543 F.3d 392, 397-98 (7thCir.2008).Mobiletracking device warrants may authorize the use oftrackingdevices outside the

jurisdictionof the court, so long as the device was installed in thatjurisdiction.

Fed.R.Crim.P. 41(b)(4); 18 U.S.C. 3117(a). Inthe proposed amendment, thephrase"anydistrictwhere activities related to a crime mayhaveoccurred" is thesameas the language setting

out thejurisdictionalscopeo f Rule41(b)(3).Theamendment provides that notice o f the warrant may be accomplished by anymeans

reasonablycalculated to reach an owner or operator ofthe computer or - as stated in theamendment,whichusesexisting Rule41 language - the"storagemedia or electronically storedinformation." In manycases,notice islikelyto be accomplished electronically;law enforcement

may nothavea computer owner'snameandstreetaddressto provide notice throughtraditionalmechanisms. The amendment also requires that the executingofficermakereasonableeffortsto

providenotice. This standard recognizes that in unusualcases,such as where theofficercannot

reasonablydetermine the identity or whereabouts of the ownerofthestoragemedia, theofficer

may be unable to provide notice of the warrant. Cf.18 U.S.C. 3771(c)(1)(officers"shall make

theirbesteffortsto see that the crimevictimsarenotifiedof ... the rights described in

subsection(a)").

In lightof the presumption against internationalextraterritorial application, and consistent

withthe existing language o f Rule41(b)(3),this amendment doesnot purport to authorize courts

toissuewarrants that authorize thesearchof electronicstoragemedia located in aforeigncountry

or countries. The Fourth Amendmentdoesnot apply tosearchesof the property o fnon-UnitedStatespersonsoutside theUnitedStates,see United States v. Verdugo-Urquidez, 494 U.S. 259,

261 (1990), and the Fourth Amendment's warrant requirementdoesnot apply tosearchesof

UnitedStatespersonsoutside theUnitedStates. See United States v. Stokes, F.3d ,

2013WL 3948949 at *8-*9 (7th Cir.Aug.1, 2013);In re Terrorist Bombings, 552 F.3d 157,

170-71(2dCir. 2008). Instead,extraterritorialsearchesofUnitedStatespersonsare subject totheFourth Amendment's "basicrequirement ofreasonableness." Stokes, 2013 WL 3948949 at


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*9;seealsoIn reTerrorist Bombings, 552F.3d at 170 n.7. Under this proposed amendment, lawenforcementcouldseeka warrant either where the electronic media to besearchedarewithintheUnitedStatesor where thelocationofthe electronic media isunknown. Inthe lattercase,should

themediasearchedprove to be outside theUnitedStates,the warrantwouldhaveno

extraterritorial effect,but the existence ofthe warrantwouldsupport thereasonablenessofthe

search.

Webelieve thattimelyand thorough considerationofthisproposed amendment by theAdvisoryCommittee is appropriate. We therefore ask that the Committee act at its November

meetingto establish a subcommittee to examine this importantissue. Criminals are increasingly

usingsophisticated technologies thatposetechnical challenges to law enforcement, and remotesearchesof computers areoftenessential to the successfulinvestigationofbotnetsand crimes

involvingInternetanonymizingtechnologies. Moreover, this proposalwouldensurea court-

supervisedframeworkthroughwhichlaw enforcementcouldsuccessfully investigate and

prosecutesuch crimes.

Welook forwardto discussing thiswithyou and the Committee.

*

Sincerely,

MythiliRaman

ActingAssistantAttorneyGeneral

cc: ProfessorSaraSunBeale, ReporterProfessorNancy J.King, Reporter

Documents

AAAG Raman Letter to Judge Raggi Re Rule 41 Amendment