On December 1, 2016, a change to Federal Rule of Criminal Procedure 41(b) took effect that allows federal courts to issue broad warrants for access to electronic communications and data.  The former version of Rule 41(b) limited the scope of search warrants for the search and seizure of property (including electronic data) within a federal court’s own district.  The new version of the rule provides a much broader scope – federal courts can now issue warrants for remote access to electronic data outside their own district if the “location of the information has been concealed through technological means” or when the data is in five or more districts.  

The implications of this rule change have been subject to robust debate.  Critics of the rule change say that it opens the door to law enforcement surveillance that is not subject to any geographic constraints, and that such activity could impact anyone using routine and legitimate privacy tools to protect their electronic data.  The Department of Justice (“DOJ”) has countered that the rule change does not create any new substantive right to search or in any way alter existing statutory or constitutional requirements, and that the changes are needed to ensure law enforcement activities are not thwarted by “outmoded venue rules.” 

The DOJ has advocated for the rule change since 2014, arguing that it is necessary to help law enforcement keep pace with the growing use of sophisticated technologies used by cyber criminals to conceal their identities.  Examples of such technology are “botnets,” which are a collection of computers (often personal computers).  Malicious software associated with a particular botnet allows infected computers (individually known as bots) to be remotely controlled by a master computer.  Use of such botnets aids in masking the true identities and locations of the perpetrators of criminal activities. 

The rule change was approved by the U.S. Supreme Court on April 28, 2016, and because Congress took no action prior to December 1, 2016, the new version of the rule is now in effect.