From Carr. Peter tom
Subieci rw [ueesnn Media Inquiry Ais 
Date May 22' 2015 at it 25AM

--

Thanks tor rhe aliemale email Wanted to make sure you had the noies below trorn the agenda book.
which should be iieiptni providing context tor your story

-Peier

From Carr, Peter (GPA)

Sent riday, May 29, 2015 2:11 PM

Subject. Fw. Media Inquiry. Ars Technica

 

 

Yes. rhnr's barren, 1 am not aware at any data on rhe number at nines Iliis been pre\ lousl).
authorized.

The agenda book tor the meeting can be found here: policies/records-and--
under the Standing Committee Ma) 201

 

Here's one of se\ ei'al sections from the agenda book that deal Itli this issue:

Recommendation--The Advisory Committee recommends that thepropored amendment

to Rule 4 be approved as published and transmitted to the Judicial Conference.

B. ACTION 41 (venue for approval ofwarrant for certain remote

electronic searches)

Afier review of the public comments, the Advisory Committee voted with one dissent to
recommend that Standing Committee approve the proposed amendment as revised afier
publication and transmit it to the Judicial Conference

The proposed amendment (Tab D) provides that in two specific circumstances a

magistrate Judge in a district where the activities related to a crime may have occurred has
authority to issue a warrant to use remote access to search electronic storage media and seize or
copy electronically stored information even when that media or information is or may be located
outside of the district

The proposal has two pans The first change is an amendment to Rule 41(b), which

generally limits warrant authority to searches within a district,4 but permits out-of>>district

4 Rule 41(b)(1) magistrate Judge authority in the district 7 or ifnone is reasonably

available, a Judge ofa state coun ofrecord in the district 7 has authority to issue a warrant to search for
and seize a person or property located within the district")

searches in specified circumstances 5 The amendment would add specified remote access
searches for electronic information to the list of other extraterritorial searches permitted under
Rule 41(1)) Language in a new subsection 41(b)(6) would authorize a court to issue a warrant to
use remote access to search electronic storage media and seize electronically stored information
inside or outside ofthe district in two specific circumstances

The second part ofthe proposal is a change to Rule regulating notice that a

search has been conducted New language would be added at the end of that provision indicating
the process for providing notice of a remote access search

I Reasons for the nmnosed amendment

1. Reasons for the proposed amendment
Rule 41’s territorial venue provisions–which generally limit searches to locations within
a district–create special difficulties for the Government when it is investigating crimes involving
electronic information. The proposal speaks to two increasingly common situations affected by
the territorial restriction, each involving remote access searches, in which the government seeks
to obtain access to electronic information or an electronic storage device by sending surveillance
software over the Internet.
In the first situation, the warrant sufficiently describes the computer to be searched, but
the district within which the computer is located is unknown. This situation is occurring with
increasing frequency because persons who commit crimes using the Internet are using
sophisticated anonymizing technologies. For example, persons sending fraudulent
communications to victims and child abusers sharing child pornography may use proxy services
designed to hide their true IP addresses. Proxy services function as intermediaries for Internet
communications: when one communicates through an anonymizing proxy service, the
communication passes through the proxy, and the recipient of the communication receives the
proxy’s IP address, not the originator’s true IP address. Accordingly, agents are unable to
identify the physical location and judicial district of the originating computer.
A warrant for a remote access search when a computer’s location is not known would
enable investigators to send an email, remotely install software on the device receiving the email,
and determine the true IP address or identifying information for that device. The Department of
Justice provided the Committee with several examples of affidavits seeking a warrant to conduct
such a search. Although some judges have reportedly approved such searches, one judge
recently concluded that the territorial requirement in Rule 41(b) precluded a warrant for a remote
5 Currently, Rule 41(b) (2) – (5) authorize out-of-district or extra-territorial warrants for: (1) property in the

district when the warrant is issued that might be moved outside the district before the warrant is executed; (2)
tracking devices, which may be monitored outside the district if installed within the district; (3) investigations of
domestic or international terrorism; and (4) property located in a United States territory or a United States
diplomatic or consular mission.

search when the location of the computer was not known, and he suggested that the Committee
consider updating the territorial limitation to accommodate advancements in technology. In re
Warrant to Search a Target Computer at Premises Unknown, 958 F. Supp. 2d 753 (S.D. Tex.
2013) (noting that "there may well be a good reason to update the territorial limits of that rule in
light of advancing computer search technology").
The second situation involves the use of multiple computers in many districts
simultaneously as part of complex criminal schemes. An increasingly common form of online
crime involves the surreptitious infection of multiple computers with malicious software that
makes them part of a “botnet,” which is a collection of compromised computers that operate
under the remote command and control of an individual or group. Botnets may range in size
from hundreds to millions of compromised computers, including computers in homes,
businesses, and government systems. Botnets are used to steal personal and financial data,
conduct large-scale denial of service attacks, and distribute malware designed to invade the
privacy of users of the host computers.
Effective investigation of these crimes often requires law enforcement to act in many
judicial districts simultaneously. Under the current Rule 41, however, except in cases of
domestic or international terrorism, investigators may need to coordinate with agents,
prosecutors, and magistrate judges in every judicial district in which the computers are known to
be located to obtain warrants authorizing the remote access of those computers. Coordinating
simultaneous warrant applications in many districts–or perhaps all 94 districts–requires a

 simultaneous warrant applications in many districts–or perhaps all 94 districts–requires a
tremendous commitment of resources by investigators, and it also imposes substantial demands
on many magistrate judges. Moreover, because these cases concern a common scheme to infect
the victim computers with malware, the warrant applications in each district will be virtually
identical.
2. The proposed amendment
The Committee’s proposed amendment is narrowly tailored to address these two
increasingly common situations in which the territorial or venue requirements now imposed by
Rule 41(b) may hamper the investigation of serious federal crimes. The Committee considered,
but declined to adopt, broader language relaxing these territorial restrictions. It is important to
note that the proposed amendment changes only the territorial limitation that is presently
imposed by Rule 41(b). Using language drawn from Rule 41(b)(3) and (5), the proposed
amendment states that a magistrate judge “with authority in any district where activities related
to a crime may have occurred” (normally the district most concerned with the investigation) may
issue a warrant that meets the criteria in new paragraph (b)(6). The proposed amendment does
not address constitutional questions that may be raised by warrants for remote electronic
searches, such as the specificity of description that the Fourth Amendment may require in a
warrant for remotely searching electronic storage media or seizing or copying electronically
stored information. The amendment leaves the application of this and other constitutional
standards to ongoing case law development.
In a very limited class of investigations the Committee’s proposed amendment would
also eliminate the burden of attempting to secure multiple warrants in numerous districts. The
proposed amendment is limited to investigations of violations of 18 U.S.C. § 1030(a)(5),6 where
the media to be searched are “protected computers” that have been “damaged without
authorization.” The definition of a protected computer includes any computer “which is used in
or affecting interstate or foreign commerce or communication.” 18 U.S.C. § 1030(e)(2). The
statute defines “damage” as “any impairment to the integrity or availability of data, a program, a
system, or information.” 18 U.S.C. § 1030(e)(8). In cases involving an investigation of this
nature, the amendment allows a single magistrate judge with authority in any district where
activities related to a violation of 18 U.S.C. § 1030(a)(5) may have occurred to oversee the
investigation and issue a warrant for a remote electronic search if the media to be searched are
protected computers located in five or more districts. The proposed amendment would enable
investigators to conduct a search and seize electronically stored information by remotely
installing software on a large number of affected victim computers pursuant to one warrant
issued by a single judge. The current rule, in contrast, requires obtaining multiple warrants to do
so, in each of the many districts in which an affected computer may be located.
Finally, the proposed amendment includes a change to Rule 41(f)(1)(C), which requires
notice that a search has been conducted. New language would be added at the end of that
provision indicating the process for providing notice of a remote access search. The rule now
requires that notice of a physical search be provided “to the person from whom, or from whose
premises, the property was taken” or left “at the place where the officer took the property.” The
Committee recognized that when an electronic search is conducted remotely, it is not feasible to
provide notice in precisely the same manner as when tangible property has been removed from
physical premises. The proposal requires that when the search is by remote access, reasonable
efforts be made to provide notice to the person whose information was seized or whose property
was searched.
6 18 U.S.C. § 1030(5) provides that criminal penalties shall be imposed on whoever:

(A) knowingly causes the transmission of a program, information, code, or command, and as a result

 (A) knowingly causes the transmission of a program, information, code, or command, and as a result
of such conduct, intentionally causes damage without authorization, to a protected computer;
(B) intentionally accesses a protected computer without authorization, and as a result of such conduct,
recklessly causes damage; or
(C) intentionally accesses a protected computer without authorization, and as a result of such conduct,
causes damage and loss.

3. Public Comments and Subcommittee Review
a. The public comments
During the public comment period the Committee received 44 written comments from
individuals and organizations, and eight witnesses testified at the Committee’s hearing in
November:
The Federal Bar Council, the Federal Magistrate Judges’ Association, the National
Association of Assistant United States Attorneys, and former advocate for missing and
exploited children Carolyn Atwell-Davis all supported the amendment without change.
The amendment was opposed by the American Civil Liberties Union (ACLU), the
National Association of Criminal Defense Attorneys (NACDL), the Pennsylvania Bar
Association, the Reporters Committee on the Freedom of the Press, the Clandestine
Reporters Working Group, and several foundations and centers that focus on privacy
and/or technology. Twenty-eight unaffiliated individuals wrote to oppose the
amendment.
The Department of Justice submitted several written responses to issues raised in the public
comments.
A summary of the comments is provided at Tab D. The main themes in the comments
opposing the amendment are summarized below.
(i) Fourth Amendment concerns
The most common theme in the comments opposing the amendment was a concern that it
relaxed or undercut the protections for personal privacy guaranteed by the Fourth Amendment.
These comments focused principally on proposed (b)(6)(A), which allows the court in a district
in which activities related to a crime may have occurred to grant a warrant for remote access
when anonymizing technology has been employed to conceal the location of the target device or
information.
Multiple comments argued that remote searches could not meet the Fourth Amendment’s
particularity requirement, and others emphasized that they would constitute surreptitious entries
and invasive or destructive searches requiring a heightened showing of reasonableness. Many of
these comments also challenged the constitutional adequacy of the notice provisions. Finally,
several comments urged that the serious constitutional issues raised by remote searches would be
insulated from judicial review.
A particular concern raised in many comments was that the use of anonymizing
technology, such as Virtual Private Networks (VPNs), would subject law abiding citizens to
remote electronic searches.
(ii) Title III
Multiple comments urged that warrant applications for remote electronic searches should
be subject to requirements like those under the Wiretap Act, 18 U.S.C. § 2518 (Title III), or a
surveillance warrant containing equivalent protections.
(iii) Extraterritoriality and international law concerns
Some comments focused on the possibility that the devices to be searched–whose
location was by definition unknown–might be located outside the United States. They urged that

 location was by definition unknown–might be located outside the United States. They urged that
the courts should not authorize searches outside the United States that would violate international
law and the sovereignty of other nations, as well as any applicable mutual legal assistance
treaties.
(iv) The role of Congress
An additional theme running through many of these comments was that the proposed
amendment raised policy issues that should be resolved by Congress, not through procedural
rulemaking. Some comments argued that only Congress could balance the competing policies
and adopt appropriate safeguards. Others urged that the proposed amendment exceeded the
authority granted by the Rules Enabling Act.
(v) Notice concerns
Finally, multiple comments expressed concern that the notice provisions were
insufficiently protective, because they required only that reasonable efforts be made to provide
notice. This, commenters argued, might lead to no notice being given to parties who were
subject to remote electronic searches, or to long delays in giving notice. Some commenters also
argued that all parties whose rights were affected by a search must be given notice, not either the
person whose property was searched or whose information was seized or copied.
b. The Subcommittee’s review and recommendation
The Rule 41 Subcommittee, chaired by Judge Raymond Kethledge, received both
summaries and the full text of all comments, and it held multiple teleconferences to review the
comments. The Subcommittee unanimously recommended that, with several minor revisions,
the Advisory Committee should approve the proposed amendment and transmit it to the Judicial
Conference.
4. Recommended action
After extended discussion, the Advisory Committee concurred in the recommendation
that the proposed amendment, with minor revisions proposed by the Subcommittee, should be
approved for transmission to the Standing Committee.
a. Opposition to the proposed amendment
In general the Committee concluded that the concerns of those opposing the amendment
were about the substantive limits on government searches, which are not affected by the
proposed amendment. Opposition comments did not address the procedure for designating the
district in which a court will initially decide whether substantive requirements have been
satisfied in the two circumstances prompting the amendment. Thus they furnished no basis for
withdrawing the proposed amendment. The Committee is confident that judges will address
Fourth Amendment requirements on a case-by-case basis both in issuing warrants under these
amendments and in reviewing them when challenges are made thereafter.
Much of the opposition to the amendment reflected a misunderstanding of current law,
the scope of the amendment, and the serious problems that it addresses. First, many commenters
who opposed the rule did not recognize that the government must demonstrate probable cause to
obtain a warrant. As noted below, the Committee recommends a revision to the caption of the
relevant section referring to “venue” in order to draw attention to the limited scope of the
amendment. Second, many commenters incorrectly assumed that the amendment created the
authority for remote electronic searches. To the contrary, remote electronic searches are
currently taking place when the government can identify the district in which an application
should be made and satisfy the probable cause requirements for a warrant. Third, the opposing
comments do not take account of the real need for amendment to allow the government to
respond effectively to the threats posed by technology. Technology now provides the means for

 respond effectively to the threats posed by technology. Technology now provides the means for
identity theft, corporate espionage, terrorism, child pornography, and other serious offenses to
jeopardize the economy, national security, and individual privacy. The government can itself use
technology to identify the perpetrators of such crimes but needs a rule clarifying the venue where
it should make the Fourth Amendment showing necessary for a warrant. At the hearings, those
who opposed the amendment were candid in admitting that they could offer no alternative to the
proposed amendment (other than the hope that Congress might study the general issues and
respond).
The Committee concluded that it was important to provide venue, thus allowing the case
law on potential constitutional issues to develop in an orderly process as courts review warrant
applications. This is far preferable than after-the-fact rulings on the legality of warrantless
searches for which the government claims exigent circumstances. If the New York Stock
Exchange were to be hacked tomorrow using anonymizing software, under current Rule 41 there
is no district in which the government could seek a warrant. It would be preferable, the
Committee concluded, to allow the government to seek a warrant from the court where the
investigation is taking place, rather than conducting a warrantless search. Judicial review of
warrant applications better ensures Fourth Amendment rights and enhances privacy. Any
concern that judges may be uninformed about the technology to be used in the searches could be
addressed by judicial education. The Federal Judicial Center has recently prepared some
information materials about topics such as cloud computing, and additional materials could be
developed to help judges review applications for remote electronic searches.
In botnet investigations, the amendment provides venue in one district for the warrant
applications, eliminating the burden of attempting to secure multiple warrants in numerous
districts and allowing a single judge to oversee the investigation. In prior botnet investigations,
the burden of seeking warrants in multiple districts played a role in the government’s strategy,
providing a strong incentive to rely on civil processes. Again, the amendment addresses only a
procedural issue, not the underlying substantive law regulating these searches. Allowing venue
in a single district in no way alters the constitutional requirements that must be met before search
warrants can be issued.
The Committee declined to make any major changes in the provisions governing notice.
However, as noted below, it adopted several small changes recommended by the Subcommittee
and also revised the Committee Note to address concerns made in the public comments.
Finally, the Committee concluded that arguments urging that the matter be left to
Congress are not persuasive. Venue is not substance. Venue is process, and Rules Enabling Act
tells the judiciary to promulgate rules of practice and procedure, not to wait for Congress to act.
Instead, Congress responds to proposed rules. The Department came to the Committee with two
procedural problems, created by the language of the existing Rule, not by the Constitution or
other statute, that are impairing its ability to investigate ongoing, serious computer crimes. The
Advisory Committee’s role under the Rules Enabling Act is to propose amendments that address
these problems and provide a forum for the government to determine the lawfulness of these
searches.
One member dissented from the Committee’s conclusions on these points and voted
against forwarding the amendment to the Standing Committee. The dissenting member thought
that the amendment is substantive, not procedural, because it has such important substantive
effects, allowing judges to make ex parte determinations about core privacy concerns. The
amendment, this member argued, would not permit adversarial testing of the underlying
substantive law because defense counsel would not participate until too late in the process, in
back-end litigation. For many people, computers are their lives, and the member concluded that

 back-end litigation. For many people, computers are their lives, and the member concluded that
these privacy concerns should be considered in the first instance by Congress. The remainder of
the Committee was not persuaded; computers are no more sacrosanct than homes, and search
warrants for homes have long been issued ex parte and reviewed in back-end litigation.
b. Proposed revisions
The Committee unanimously accepted the Subcommittee’s recommendations for several
revisions in the rule as published, none of which require republication.
(i) The caption
The Committee accepted the Subcommittee’s recommendation for a change in the
caption of the affected subdivision of Rule 41, substituting “Venue for a Warrant Application”
for the current caption “Authority to Issue a Warrant.” This change responds to the many
comments that assumed the amendment would allow a remote search in any case falling within
the proposed amendment (for example, any case in which an individual had used anonymizing
technology such as a VPN). The current caption seems to state an unqualified “authority” to
issue warrants meeting the criteria of any of the subsections. Many commenters mistakenly
interpreted the rule in this fashion, and strongly opposed it on this ground. The Committee
considered and declined to adopt alternative language suggested by our style consultant,
Professor Kimble, because it would less clearly indicate the limited purpose and effect of the
amendment.
The Committee also adopted the Subcommittee’s proposed addition to the Committee
Note explaining the change in the caption. The new Note explicitly addresses the common
misunderstanding in the public comments, stating what the amendment does (and does not) do:
“the word ‘venue’ makes clear that Rule 41(b) identifies the courts that may consider an
application for a warrant, not the constitutional requirements for the issuance of a warrant, which
must still be met.”
(ii) Notice
The Committee adopted the Subcommittee’s two proposed revisions to the notice
provisions for remote electronic searches and the accompanying Committee Note. The purpose
of both revisions to the text is to parallel, as closely as possible, the requirements for physical
searches. The addition to the Committee Note explains the changes to the text, and also responds
to a common misunderstanding that underpinned multiple comments criticizing the proposed
notice provisions.
The Committee added a requirement that the government provide a “receipt” for any
property taken or copied (as well as a copy of the warrant authorizing the search). This parallels
the current requirement that a receipt be provided for any property taken in a physical search.
The Committee agreed that the omission of this requirement in the published rule was an
oversight that should be remedied.
The Committee also rephrased the obligation to provide notice to “the person whose
property was searched or who possessed the information that was seized or copied.” Again, the
purpose was to parallel the requirement for physical searches.
On the other hand, the Committee rejected the suggestion in some public comments that
the government should be required to provide notice to both “the person whose property was
searched” and whoever “possessed the information that was seized or copied, since that is not
required in the case of physical searches. For example, if the Chicago Board of Trade is served
with a warrant and files containing information regarding many customers are seized, the

 government may give notice of the search only to the Board of Trade, and not to each of the
customers whose information may be included in one or more files The same should be true in
the case ofremote electronic searches

Finally, the Committee endorsed the Subcommittee's proposed addition to the Committee

Note explaining the changes made in the notice provisions after publication, and also responding
to the many comments that criticized the proposed notice provisions as insufi'iciently protective
The addition to the Note draws attention to the other provisions of Rule 41 that preclude delayed
notice except when authorized by statute and provides a citation to the relevant statute Professor
Coquillette commented that because of the widespread confusion on this point in the public
comments, the proposed addition was an appropriate exception to the general rule that committee
notes should not be used to help practitioner

Recommendation--The Advisory Committee reenmmemlr that tltepropoxeri amendment
to Rule 41 be approved It: amended and trammitted to the Judicial Conference.

 

From: Cyrus Fanvar 
Sent: Friday, May 29, 2015 12:26 PM

To: Carr, Peter (OPA)

Subject: Media Inquiry: Ars Technica

Hi there,

Just wanted to confirm that this is accurate

COURTS COMMITTEE REMOTE COMPUTER SEARCH POWERS -- The US,
Courts 'Standmg Committee on Rules of Practice and Procedure has unanimoust approved a
proposed change to federal court rules that would allow judges to issue a warrant authorizing a
"remote Search of a computer, even when Its location is unknown. a DOJ ofi'mal tells MC.

mp //wwu politieo 

Does have any figures as to how many times such remote access has previously been
authorized"

Best,
-C

Cyrus Farivar
FAR>>ih-var"

Senior Business Editor, Ars Technica

htti //arstechn aeom/author/ rus-farivar/

Amman",