
U.S. judges propose updating warrants for Tor, remote searches: p338 (2014) - mkempe
http://www.uscourts.gov/uscourts/rules/preliminary-draft-proposed-amendments.pdf
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slapshot
I'm just an unfrozen caveman lawyer (and not your lawyer), but if the
following is the relevant part then it appears the change here is only that
the judge who issues the warrant may be where the victim is located rather
than where the servers are located. Normally, a warrant must be issued by a
judge sitting where the evidence is to be collected. This seems to say that if
you're hiding your location, the judge in the victim's district can issue the
warrant instead of having the Catch-22 of not being able to find the right
district because you can't track down the server because you don't have a
warrant.

Magistrate judges issuing warrants is normal -- they do most of the day-to-day
evidence work outside of trials.

    
    
      a magistrate judge with authority in any district
      8 where activities related to a crime may have
      9 occurred has authority to issue a warrant to use
      10 remote access to search electronic storage media
      11 and to seize or copy electronically stored
      12 information located within or outside that district
      13 if:
      14 (A) the district where the media or information
      15 is located has been concealed through
      16 technological means
    

(edit: added language from the PDF -- key is the "if") (edit 2: Original
headline was "FBI seeks automatic warrants against users of VPN and Tor (p.
338) [pdf]" since it's going to get changed)

~~~
declan
Yep, as <slapshot> says, the HN headline is in error and should be changed.

At the very least the word "automatic" should be deleted. It incorrectly
implies lack of discretion on the part of the magistrate judge.

Now, perhaps many magistrate judges may be too willing to issue warrants, but
that's a different discussion. And there have been plenty of examples where
they've raised important issues dealing with electronic surveillance; I
highlighted Magistrate Judge Orenstein's opinion re: warrantless cell tracking
in this 2005 article: [http://news.cnet.com/Police-blotter-Cell-phone-
tracking-reje...](http://news.cnet.com/Police-blotter-Cell-phone-tracking-
rejected/2100-1030_3-5846037.html)

~~~
dang
Can anyone please suggest an accurate title? We will change it.

~~~
declan
This might work:

"U.S. judges propose updating warrants for Tor, remote searches: p338 (2014)"

It captures that the source of these recommendations is a judicial conference
of federal judges, not the FBI, and that it's dated August 2014. And it
mentions the more interesting section (to me) on page 340, which is the fact
that warrants could authorize "remote access to search electronic storage and
seize or copy electronically stored information" via the Internet.

Not perfect, but it seems workable...

~~~
dang
Thanks! We'll use that unless someone suggests a better one.

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fixermark
I believe the HN headline is in error. This proposed amendment appears to
authorize a wider range of magistrate judges to issue a warrant if the
jurisdiction cannot be determined because the computers in use have had their
location concealed (via Tor or VPN, among other technologies, is the inference
the original poster appears to make). How do we leap from "Feds can ask more
magistrate judges for warrants" to "Automatic warrants?" It still has to pass
someone's sniff test, right?

~~~
Tobu
> a magistrate judge with authority in any district where activities related
> to a crime may have occurred

Weasely enough that the warrant-seeker could pick a pet court wherever they
have computers. There's a judge who made Marshall, East Texas the place to
find software patents infringed with maximum damages. A similar venue would
pop up.

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dragonwriter
There is nothing about "automatic" warrants in that document, just an
amendment that would:

1) Extend _venue_ for warrants for remote searches, in cases where the
location of the servers is either obscured or in certain cases where the
targeted computers located in five or more districts, to magistrate judges in
_any_ district, rather than just magistrate judges in the district where the
computers are located (Rule 41 amendments pp. 338-339, lines 14-21), and

2) Specify how notice must be provided when searches are conducted on the
basis of a warrant for remote access search (id., lines 33-43).

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angersock
Relevant section:

    
    
      (6) a magistrate judge with authority in any district
      7 where activities related to a crime may have
      8 occurred has authority to issue a warrant to use
      9 remote access to search electronic storage media
      10 and to seize or copy electronically stored
      11 information located within or outside that district
      12 if:
      13 (A) the district where the media or information
      14 is located has been concealed through
      15 technological means; or
    

Note that this doesn't even point out VPN/Tor by name, just "concealed through
technological means", which might even be broadly interpreted to include WHOIS
privacy guard services or other really silly things.

~~~
fixermark
It's also not authorizing automatic warrants; it's just increasing the range
of magistrates who could be authorized to issue a warrant.

But if our headlines stick too close to the facts, they don't make it to the
front page of HN, right? ;)

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cdwhite
It's not clear to me how these warrants are "automatic". FTAmendments:

"a magistrate judge [...] _has authority_ to issue a warrant to use remote
access to search electronic storage media [...]" (emphasis mine)

IANAL, though; could someone who knows more explain what's going on? How will
the procedure and requirements for obtaining a warrant for such "remote
access" differ from those for searching, say, a house?

Edit: as I typed, slapshot posted some helpful explanation.

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manulp
If my understanding is correct, it is a bit more complicated.

The magistrate with authority in a district may only issue a warrant for a
remote search if:

    
    
      * The crime investigated occurred at least partially in the district.
      * The device location was hidden by any mean (vpn, tor, etc.).
    

This doesn't say anything about obtaining warrants automatically if someone is
using VPN or Tor.

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mkempe
The Federal Government seeks to change the rules to obtain warrants
automatically against anyone using VPN or Tor -- because these are means of
hiding the location of a computer.

See page 338 of the linked PDF.

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NoMoreNicksLeft
Will this allow for judge-shopping?

If I claim that I can't determine a location, can I then pick a judge who's
more likely to grant the warrant? How would someone challenge that, can the
FBI just shrug and say "we couldn't figure it out" ?

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handsomeransoms
I think the title of this post is misleading. For context, see the summary of
the amendment on p. 324, under "ACTION ITEM—Rule 41 (venue for approval of
warrant for certain remote electronic searches)".

The goal of this amendment (appears to me, a non-laywer) to be to allow judges
to issue warrants for crimes that occur in their jurisdiction, for materials
that may not be in their jurisdiction, when the location of the materials has
been obfuscated with an anonymizing technology. I don't think this is an
"automatic warrant" \- they still have to establish probable cause, etc.

A more interesting sentence from p. 325 discusses the mechanism by which the
search may be carried out: "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."

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fixermark
An interesting side-effect of this change in warrant law would be that
domestic law enforcement would be authorized to access, remotely (and possibly
destructively, since it can be hard to tell precisely how a remote machine is
configured), machines that are not physically located in U.S. jurisdiction,
since the anonymizing proxies can make geographical origin hard to figure out.

I imagine this interpretation of the law works until and unless a major
government declares that tampering with their citizens' private property
without the citizens' consent while it is housed within the government's
sovereign territory is tantamount to an act of war. But practically speaking,
that scenario is unlikely (from any nation with enough firepower for the U.S.
to care).

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harken22
Would this apply retroactively to warrants already issued? We know that in the
Freedom Hosting takedown, an exploit was deployed by the FBI to identify the
machines of users on the Freedom Hosting network. After that incident, there
has been no resulting arrests from that intelligence.

Lets suppose the FBI deployed their exploit on Freedom Hosting's servers but
ran into legal issues afterwards with their search warrants due to their
jurisdiction.

If this were to pass, would it retroactively legalize those warrants that were
issued in July 2013?

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rurban
I don't understand. Is it this sentence at pg 338? "(A) the district where the
media or information is located has been concealed through technological
means"

But this applies to warrants, and would apply to all of SSL or SSH traffic
("information") or password protection of the PC or media, or sending
encrypted word documents, not just vpn, ipsec or tor. Even binary formats
would qualify as concealed. I don't see anything about tor or vpn.

~~~
lbearl
It isn't about concealing the information, it is about concealing the ultimate
origin of the request. If you have an SSL session without going through a VPN
or other proxy there is a direct relationship between you (the originator of
the request) and the server (providing or receiving the possibly encrypted
information).

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dsp1234
Does this decision increase the likelihood of venue shopping? If the DOJ/FBI
can ask any magistrate judge in any jurisdiction, then can't they find the
most lenient judge, just by keeping statistics over time about the number of
rejections or edits required, with the closest to 100% warrant issuance rate?
Is there any counter-balance to this type of scenario?

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Glyptodon
If I read correctly, it's clarifying magistrate judges' authority to issue a
warrant given resources behind VPN/Tor/similar might otherwise cause
jurisdictional issues, among other things. It doesn't seem to be changing
probable cause requirements. But I may not be reading correctly.

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comrade1
Presumeably this will not apply to corporate VPN users...

~~~
0dmethz
Haha! Do you really believe that?

~~~
comrade1
Sarcasm is lost on the internet.

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spammyusername
Thanks eagle-eyed sycophants of the state for amending the title so it's
harder to understand the practical impact of this proposal. More colossal
stupidity.

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cryoshon
Great, one more step toward a panopticon.

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wahsd
Next up, automatic warrants against anyone who does not live in a glass house.
Because not living in a glass house is a means for obscuring illegal activity.

Heil USA!

