As gov’t discusses expanding digital searches, ACLU sounds caution

Federal agents have been known to use “remote access searches” against a target computer whose location is unknown or outside of a given judicial district in past and ongoing cases: a Colorado federal magistrate judge approved sending malware to a suspect’s known e-mail address in 2012.

But similar techniques have been rejected by other judges on Fourth Amendment grounds. If this rule revision were to be approved, it would standardize and expand federal agents’ ability to survey a suspect and to exfiltrate data from a target computer regardless of where it is.

The American Civil Liberties Union (ACLU) published a 21-page memorandum with comments and recommendation to the DOJ. Specifically, the ACLU fears “jurisdictional overreach,” which under the new rules would allow a magistrate judge in any district to impose a “remote access search warrant” in any other district. The memo is authored by Nathan Freed Wessler, Chris Soghoian, Alex Abdo, and Rita Cant, who are attorneys and fellows at the ACLU.

“Unlike terrorism investigations [...], remote searches of electronic storage media are likely to occur with great frequency. The proposed rule is not a minor procedural update; it is a major reorganization of judicial power.” The ACLU also raised the troubling implications of granting the power of a single warrant to conduct vast digital searches.