On April 28, 2016, the U.S. Supreme Court approved amendments to Rule 41 of the Federal Rules of Criminal Procedure that would allow federal judges to issue search warrants granting remote access to electronic devices outside their jurisdiction.  Previously, if agencies such as the Federal Bureau of Investigation (“FBI”) wanted to “hack” into the computer of a person who was suspected of criminal activity, it would need to know the location of that person’s computer to ascertain the jurisdiction in which it would need to secure a search warrant.  With this ruling, the FBI’s authority under one search warrant will have no geographic limitation, meaning that the FBI could legally hack into a computer no matter where it was located.  Absent other action from Congress, these changes will go into effect on December 1, 2016.

The requirement that a search warrant be approved in the jurisdiction in which each computer is physically located has long been an impediment to the FBI’s investigations of cyber criminals.  Devices and items such as virtual private networks and anonymity software can be utilized by end-users to cover up their online identities and block their physical locations—effectively making it impossible in some cases for the FBI to know enough about a suspect to secure a search warrant.  With the Supreme Court’s ruling, authority to search and/or hack a suspect’s computer would no longer be tied to a specific geographic location or computer.  

Not surprisingly, privacy advocates were not pleased with Supreme Court’s ruling.  Senator Ron Wyden (D-OR), a vocal advocate for online privacy measures, voiced his opposition to the amendments, arguing that “[u]nder the proposed rules, the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once; and the vast majority of the affected computers would belong to the victims, not the perpetrators, of cybercrime.”  Importantly, law enforcement personnel must still establish the elements needed for obtaining a search warrant before a federal judge will authorize a warrant for search of a computer.  The elements the government must satisfy are 1) facts that establish probable cause to believe that evidence of crime, contraband, fruits of crime, or instrumentalities of crime is present in a computer’s hard drive or other electronic media, and 2) a particularized description of the computer or electronic media to be searched and/or seized.

Reporter, Ehren K. Halse, San Francisco, +1 415 318 1216, ehalse@kslaw.com