Washington, DC (Nov. 17, 2016) -- The National Association of Criminal Defense Lawyers (NACDL) welcomes the bipartisan introduction today of the Review the Rule Act to delay for six months implementation of proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. In the Senate, the legislation (S. 3475) is cosponsored by U.S. Senators Christopher Coons (D-DE), Steve Daines (R-MT), Mike Lee (R-UT), Ron Wyden (D-OR), Al Franken (D-MN), Tammy Baldwin (D-WI), and Rand Paul (R-KY). The House legislation (H.R. 6341) is co-cosponsored by Representatives John Conyers, Jr. (D-MI) and Ted Poe (R-TX).
The proposed changes to Rule 41 would establish expansive new authority for any magistrate judge in the country to issue warrants to locate and search computers anywhere in the world. The changes would also give the government the authority to hack into the computers of crime victims. The delay would allow Congress the opportunity to hold hearings and study the proposed changes before they are implemented.
Proponents of the rule changes justify them as necessary to address the difficulty of being able to locate computers that use anonymizing programs. But the implications of the proposed changes 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 without any jurisdictional limitations. This 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 ability to search for evidence by hacking into the computers of private citizens, even crime victims.
The proposed rule changes would give the government broad authority to remotely hack into the computers of hundreds or even thousands of innocent people with just one warrant. Such sweeping changes cannot be considered merely procedural and require significant Congressional action to ensure that fundamental constitutional rights are protected.
"We strongly encourage members of Congress to support this legislation to delay implementation of these rule changes," said NACDL President Barry J. Pollack. "Congress should not accede to rule changes that have a detrimental impact upon Americans' fundamental Fourth Amendment and privacy protections without careful examination. By extending for six months any automatic implementation of the proposed changes to Rule 41, this Congress would be affording the incoming Congress the critical opportunity to consider carefully the scope and impact of these sweeping proposed changes. Congress should also determine whether the important issues that the proposed rule changes seek to address should be taken up through an administrative rule making process at all or, rather, should be the subject of future legislation."
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.