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New Rule 41 Could Bring Sweeping Authority to Judges Issuing Search Warrants across Jurisdictions

You most likely know that the United States Supreme Court issues decisions that are considered the ultimate “law of the land,” but did you know that it also plays an integral part in federal rulemaking? A federal rule will be promulgated or amended only after:

  1. It is approved by the applicable advisory committee and the Committee on Rules of Practice and Procedure;
  2. It is approved by the Judicial Conference and the Supreme Court; and
  3. It is approved by Congress.

In June, the United States Department of Justice (DOJ) announced that one such decision to amend federal rules had been handed down in April of this year. Although it is still awaiting Congressional approval, the U.S. Supreme Court approved the amendment of Rule 41 of the Federal Rules of Criminal Procedure. Amending a procedure rule may sound incredibly benign until you learn that this particular rule sets forth the federal requirements on search and seizure.

Congressional Approval is the Only Remaining Hurdle to New Rule 41 Being Adopted

Essentially, the proposed rule amendments would allow judges to issue warrants, enabling law enforcement agents the authority to access computers in jurisdictions other than their own. Traditionally, judges have only been able to issue search warrants in the jurisdiction of their court. While the DOJ feels that this new amendment helps bring our criminal procedure rules into the digital era, critics feel that enlarging warrant jurisdiction could mean federal investigators would be able to access hundreds of thousands of computers spanning numerous jurisdictions with only one warrant, thus diminishing the burden of proof required in probably cause showings.

Despite criticism, the DOJ argues that the text of the proposed amendment to Rule 41 would apply only in two narrow situations. Firstly, where a person is breaking the law and using a computer to do so, they often use software to conceal their location. People disseminating child pornography, for example, often do so under the cover of anonymity. In this situation, federal investigators would be able to apply for a search warrant to discover the location of the individual.

In the second scenario, the rule would allow one judge to review a search warrant application for up to 94 jurisdictions where a crime involves criminal hacking located in at least 5 jurisdictions.

Miami Criminal Defense Attorneys Must Stay Abreast of New Laws Affecting Clients

If approved by Congress, the new rule would take effect on December 1, 2016 and although there are politicians fighting the proposed changes, the proposal has been in the works since 2013. Even if Congress does not approve the rule this time around, you can be sure that this issue will continue.

A key aspect of effective criminal defense is following and understand all new laws, even when those laws seem mundane and procedural. Jeffrey S. Weiner, P.A. has over 42 years of experience successfully defending clients in all areas of criminal prosecution. Although internet crime is a relatively new area of law, we have successfully defended investigations involving online gambling, pharmacy operations, pornography, copyright infringement, video and music downloads and more. For a free consultation, please contact our offices today.

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