Last Thursday, the Supreme Court announced amendments to the Federal Rules of Criminal Procedure, the procedural rules that govern criminal prosecutions in federal courts. The changes to rules governing arrest warrants, search and seizure, and computing time, have already made news in publications not usually attuned to the procedural aspects of the law. The Atlantic’s “The Supreme Court Expands FBI Hacking Powers” is a representative response. But let’s look beyond the headlines.
Here’s just what’s being changed and why each change matters.
Rule 4 Changes: Warrants and Service for Foreign Organizations
Rule 4 governs arrest warrants and summons on a complaint. The proposed changes add language differentiating between individual and organizational defendants. Whereas the current version of Rule 4 allows judges to issue warrants for defendants who fail to respond to a summons, the new version states that a judge “may take any action authorized by United States law” when “an organizational defendant” ignores a summons.
The changes also lay out the procedure for serving a summons on organizational defendants, including those who have no agent or principal place of business in the United States.
Why the Changes Matter
The revisions to Rule 4 would make it easier to serve foreign organizations who have committed offenses that are punishable in the United States, such as offering material support for terrorism, but who do not have a physical presence in the country. The Department of Justice had sought the change, as its prosecutions were becoming increasingly international in scope.
Rule 41 Changes: The Government Can Hack Anyone, Anywhere
This is the headline-making change. Currently, Rule 41 limits search warrants to property within the issuing judge’s district, with several exceptions. The revision to Rule 41 adds another, some argue major, exception: expanding the venue for obtaining warrants for remote electronic searches.
The revision adds two additional exceptions to Rule 41(b). The first allows judges to issue “a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information within or outside that district,” if the location of the computer been concealed “through technological means.” The second exception allows warrants specifically for damaged computers located in five or more districts, to be searched as part of aComputer Fraud and Abuse Act investigation.
The changes also require law enforcement to “make reasonable efforts to serve a copy of the warrant” during remote electronic searches.
Why the Changes Matter
Under the revised Rule 41, a judge in Kansas could allow officers to hack into and search computers in North Dakota or Indonesia — geographic limits for remote electronic searches are essentially no longer a hindrance to government investigators.
But, as the Judicial Conference’s Committee on Rules of Practice and Procedure noted in its September, 2015, report, “The proposal addresses venue; it does not itself create authority for electronic searches or alter applicable constitutional requirements.”
Rule 45: No 3-Day Extension for Electronic Service
This rule change gets rid of the 3-day extension when service is effected electronically. Under the revised version of Rule 45, 3 days are added only when service is made via mail, by leaving with a clerk, or “other means consented to.”
So, the 3-day rule is dead for electronic service, pretty much everywhere. Along with the changes to the Federal Rules of Criminal Procedure, the Judicial Committee is dropping the 3-day electronic service extension from its appellate, bankruptcy, and civil procedure rules as well.
Why the Change Matters
When it comes to criminal matters, pretty much every moment matters. The rule change reduces the amount of time attorneys will have to meet with their clients, a concern that was raised by the Department of Justice when the committee first considered the modification. (Those concerns weren’t enough to stave off the change, however.)
The changes will take effect on December 1st, 2016, unless Congress overrides them. And while the changes have created some controversy and received the approbation of at least one senator, congressional action seems unlikely.
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