Washington, DC (May 19, 2016) -- The National Association of Criminal Defense Lawyers (NACDL) welcomes the introduction of the Stopping Mass Hacking Act (S. 2952) by Sen. Ron Wyden (D-OR), Sen. Rand Paul (R-KY), Sen. Tammy Baldwin (D-WI), Sen. Steve Daines (R-MT), and Sen. Jon Tester (D-MT), to prevent changes to Rule 41 of the Federal Rules of Criminal Procedure from taking effect.
The proposed changes to Rule 41 would establish broad new authority for magistrate judges to issue warrants to locate and search computers without any jurisdictional limitations. While this rule change purports to address the difficulty of being able to locate computers that use anonymizing programs, the implications are much more wide ranging. Although such warrants would still have to be supported by probable cause to believe the proposed search would uncover evidence of a crime, the language of the rule is written in a way that effectively means there is no restriction at all on issuing a warrant to locate and search a computer anywhere in the world. Just as troubling, the rule change would give the government the authority to hack into the computers of crime victims.
"This is a significant and substantive change to the law masquerading as a procedural rule change," said Peter Goldberger, Co-Chair of the NACDL's Committee on Rules of Procedure. "While it is surely possible to craft a constitutional procedure for digital searches, the rule making process is not sufficient for addressing such fundamental constitutional questions. Only a comprehensive legislative approach, crafted after full public hearings, could possibly deal with all the complex aspects of this issue."
"NACDL encourages members of Congress to support this legislation," said E.G. "Gerry" Morris, President of NACDL. "Any changes of this magnitude that impact fundamental Fourth Amendment protections should only be made with the careful consideration of Congress and should be narrowly tailored to address the underlying problem."
For a more detailed presentation of NACDL's position concerning the proposed changes to Rule 41 of the Federal Rules of Criminal Procedure, please see NACDL's letter to the Advisory Committee, prepared on NACDL's behalf by Peter Goldberger and William J. Genego, co-chairs of NACDL's Committee on Rules of Procedure, and Samuel A. Guiberson, vice chair of NACDL's Fourth Amendment Advocacy Committee. A link to that letter is available here.
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.