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EEG 20510

October 27, 2016

The Honorable Loretta 
United States Attorney General
Department of Justice

950 Avenue, NW.
Washington, DC. 20530

Dear Attorney General 

We write to request information regarding the Department of Justice?s proposed amendments to
Rule 41 of the Federal Rules of Criminal Procedure. These amendments were approved by the
Supreme Court and transmitted to Congress pursuant to the Rules Enabling Act on April 30,
2016. Absent congressional action the amendments will take effect on December 1, 2016.

The proposed amendments to Rule 41 have the potential to signi?cantly expand the
Department?s ability to obtain a warrant to engage in ?remote access,? or hacking of computers
and other electronic devices. We are concerned about the full scope of the new authority that
would be provided to the Department of Justice. We believe that Congress -- and the American
public -- must better understand the Department?s need for the proposed amendments, how the
Department intends to use its proposed new powers, and the potential consequences to our digital
security before these rules go into effect. In light of the limited time for congressional
consideration of the proposed amendments, we request that you provide us with the following
information two weeks after your receipt of this letter.

1. How would the government prevent ?forum shopping? under the proposed
amendments? The proposed amendments would allow prosecutors to seek a warrant in
any district ?where activities related to a crime may have occurred.? Will the Department
issue guidance to prosecutors on how this should be interpreted?

2. We are concerned that the deployment of software to search for and possibly disable a
botnet may have unintended consequences on internet-connected devices, from
smartphones to medical devices. Please describe the testing that is conducted on the
viability of ?network investigative techniques? to safely search devices such as
phones, tablets, hospital information systems, and internet-connected video monitoring
systems.

3. Will law enforcement use authority under the proposed amendments to disable or
otherwise render inoperable software that is damaging or has damaged a protected
device? In other words, will network investigative techniques be used to ?clean? infected
devices, including devices that belong to innocent Americans? Has the Department ever
attempted to ?clean? infected computers in the past? If so, under what legal authority?

4. What methods will the Department use to notify users and owners of devices that have
been searched, particularly in potential cases where tens of thousands of devices are
searched?

5. How will the Department maintain proper chain of custody when analyzing or removing
evidence from a suspect?s device? Please describe how the Department intends to
address technical issues such as ?uctuations of intemet speed and limitations on the

ability to securely transfer data.

6. Please describe any differences in legal requirements between obtaining a warrant for a
physical search versus obtaining a warrant for a remote electronic search. In particular,
and if applicable, please describe how the principle of probable cause may be used to
justify the remote search of tens of thousands of devices. Is it suf?cient probable cause
for a search that a device merely be ?damaged? and connected to a crime?

7. If the Department were to search devices belonging to innocent Americans to combat a
complicated computer crime, please describe what procedures the Department would use
to protect the private information of victims and prevent further damage to accessed

 

 

 

   

 

 
 
   

   

 

devices.
Sincerely,
Ron Wyden
United States Senator Member of Congress
Patrick Leahy Conyers, Jr.
United States Senator ember of Congress
us Amash
Member of Congress

Christopher A. Coons on affetz

United States Senator Member of Congress

 

 

 

 

 

 

 

 

 

 

 

Jud Chu
United States Senator Me ber of ngress
Al Franken we Cohen
United States Senator Member of Congress

Mazie Hirono Suzan 
United States Senator Member of Congress
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Mike Lee Louie Gohmert
United States Senator Member of Congress
Tester ?enry a'?agi Johnson
nited States Senator Member of Congress
Ted W. Lieu
ited States Senator Member Of Congress
Martin Heinrich Edy:
United States Senator or ongress

   

Jerrold Nadler

Member of Congress