Over the past few months, there has been a flurry of sometimes contradictory activity concerning the government’s ability to access electronic information in the course of a criminal investigation. This article highlights three recent proposals that show how the broader policy debate is playing out at the level of specific legal rules.
Changes to the Federal Rules of Criminal Procedure Concerning Search Warrants
On April 28, the Supreme Court adopted changes to F. R. Crim. Pro. 41, adding a subsection (6), to authorize a magistrate judge in any district “where activities related to a crime may have occurred” to issue a warrant “to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district.” Under the amendment, such warrants can issue if “the district where the media or information is located has been concealed through technological means” or in cases involving investigations of hacking or malware transmission under the Computer Fraud and Abuse Act where the “media” are damaged computers in five or more districts.
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