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
14 (A) the district where the media or information
15 is located has been concealed through
16 technological means
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...
"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...
seems like a reasonable improvement.
"... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
We'll just invade a computer hiding its location, your honor. No, probably not in your district. Sign here.
If you use or have used VPN or Tor, then any judge anywhere in the US, could sign a warrant for the FBI to invade your computer.
The rest of Rule 41 (of the Federal Rules of Criminal Procedure) still applies. It has about 5 pages of detail about how to get a warrant, what the process is, what the standards are, etc. All this does is change the location where a judge may issue a warrant.
Flip through the rest of Rule 41. Then look at the decades (centuries?) of caselaw about warrants.
This is patently untrue based on a reading of the document. This proposed amendment also changes the command "must give a copy of the warrant" to "must make reasonable efforts", which seems to me to be a bigger issue although others seem to be ignoring it. Basically the courts would like to say, "well, we aren't really sure how one leaves notice of service electronically, so, whatever, we won't actually require it."
Under what circumstances would the FBI need a judge in some random district to sign a warrant based on a computer "hiding its location" using VPN or Tor? if the rules necessary to obtain a warrant are currently insufficient, can you please explain how this fixes an existing problem instead of creating a loophole.
The author of that post has not read the rest of FRCrP 41. It's a little confusing because the edit doesn't recite the entire Rule (just the dif), but the full text is plenty available via Google.
The current rules require the warrant to be issued by a court in the jurisdiction in which the data is located.
If the location has been hidden by technological means, the appropriate district cannot be determined. Note that this does not change in one whit what information must be provided to support a warrant (except that it no longer requires information about the location and now requires information about the fact that the location is technologically obscured), or the specifity required of a warrant, or the discretion of the judge in issuing a warrant -- it just says that if the location is obscured, then a judge in any district can issue the warrant.
Since it doesn't change the substantive requirements, it doesn't create any kind of loophole. All it does is remove the possibility that the appropriate court to issue a warrant may be impossible to determine.
(There's also a change which allows a narrow set of multidistrict warrants to be issued by a judge in any district rather than requiring separate judges in each district, but this only applies when the computers being searched are the ones damaged by an attack being investigated, and they are located in more than five districts.)
The amendment does not address constitutional questions, 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, leaving the application of this and other constitutional standards to ongoing case law
There's a difference between recognizing that the Fourth Amendment provides the requirements for specific details and allowing warrants with no specific details.
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.
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).
(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
13 (A) the district where the media or information
14 is located has been concealed through
15 technological means; or
But if our headlines stick too close to the facts, they don't make it to the front page of HN, right? ;)
"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.
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.).
See page 338 of the linked PDF.
Can anyone explain if the changes do what the headline suggests?
Can you link to the part that is changes to "broad sweeping authority"?
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" ?
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."
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).
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?
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.