June 30, 2016 | By Mark Rumold

Making Sense of a Troubling Decision: New Court Ruling Underscores the Need to Stop the Changes to Rule 41

We wrote about a case last week that was deeply disturbing: a federal court in the Eastern District of Virginia held that individuals have no reasonable expectation of privacy in a personal computer located inside their home. In this court’s view, the FBI is free to hack into networked devices (aka, pretty much everything) without a warrant. 

Fortunately, this is only the opinion of a single district court judge, so it’s not controlling precedent throughout the country. But the decision makes one thing clear: we need to stop the changes to Rule 41, amendments that will make it easier for the government to get a warrant to remotely search computers.

First, the changes to Rule 41 are going to result in a lot more government hacking. And, as the decision in the Eastern District of Virginia illustrates, that dramatic increase in government hacking is going to occur in a legal environment where judges are struggling to understand the technology and the implications their decisions will have for people’s security and privacy. If law enforcement is going to be allowed to stockpile and exploit vulnerabilities to investigate domestic crimes, there need to be stringent safeguards on the circumstances when they can do this. And it’s up to Congress, not the courts, to create those rules. If Congress allows the changes to Rule 41 to go through, they’re effectively saying: “Courts, you figure it out.” As the recent court decision shows, that is a perilous path.

Second, the changes to Rule 41 will encourage forum shopping. As we wrote before, under the changes, law enforcement will be able to apply for warrants before judges or in districts with the most flexible view on the Fourth Amendment and its requirements. And, if last week’s decision is any indication, the FBI has a very friendly venue conveniently located near its headquarters—the Eastern District of Virginia. If the FBI is looking to obtain an expansive warrant under the new Rule 41 to search a computer whose location is hidden by “technological means,” it won’t have to travel far.

It’s not too late to stop the changes to Rule 41 from going into effect, but it’s going to take a lot of effort. Last week, EFF and a coalition of privacy-aware organizations and companies launched a campaign urging Congress to disavow the changes. We have a brief window to make a difference: the rule changes will go into effect on December 1 without action from Congress. Please help us stop these misguided rule changes by adding your name to our campaign today.


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