Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Will New Criminal Procedure Rule Condone Government Hacking?

Author: Scarinci Hollenbeck, LLC

Date: December 1, 2016

Key Contacts

Back

Businesses and individuals subject to white-collar investigations don’t just have to worry about the FBI knocking on their office door. The proposed amendment to the Federal Rules of Criminal Procedure 41 took effect December 1, 2016, and gives judges authority to grant the government a warrant to hack a computer located anywhere.

Proposed Amendments to Rule 41 

Under changes to Rule 41 of the Federal Rules of Criminal Procedure, a magistrate judge with authority in any district where activities related to a crime may have occurred is now authorized to “issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information” in two situations: 1) when “the district where the media or information is located has been concealed through technological means”; or 2) when the media are on protected computers that have been “damaged without authorization and are located in five or more districts.”

Implications for Businesses

The amendments aim to make it easier for federal agencies to investigate and prosecute cybercrime. “For example, if agents are investigating criminals who are sexually exploiting children and uploading videos of that exploitation for others to see—but concealing their locations through anonymizing technology—agents will be able to apply for a search warrant to discover where they are located,” the Department of Justice recent wrote in an agency blog post regarding Rule 41.

Government Hacking

Nonetheless, the proposed rule is generating criticism among government watchdog groups. The primary concern is that the new warrants are ripe for abuse, particularly considering the technological incompetence of many judges. If unchecked, the new authority could be used liberally to access individual and business computers without having to tell their owners. This is especially true considering that government investigations into botnets could potentially include millions of computers and unsuspecting users.

Critics specifically note that there are many legitimate reasons that electronic device users may want to protect their digital privacy. The Electronic Frontier Foundation cites journalists communicating with sources and victims of domestic violence seeking information on legal services, noting: “Millions of people who have nothing in particular to hide may also choose to use privacy tools just because they’re concerned about government surveillance of the Internet, or because they don’t like leaving a data trail around haphazardly.”

Opponents of the proposed amendments also maintain that the changes subject victims of malware attacks to further intrusion. In addition, allowing the government to hack or otherwise infiltrate computers that have been compromised by a botnet does not guarantee that it will make the situation better, particularly given the government’s own vulnerability to cyberattacks.

The U.S. Supreme Court recently signed off on the rule change, and since Congress failed to act, the amendments took effect on December 1, 2016. 

    No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

    Scarinci Hollenbeck, LLC, LLC

    Related Posts

    See all
    How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide post image

    How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide

    Closing your business can be a difficult and challenging task. For corporations, the process includes formal approval of the dissolution, winding up operations, resolving tax liabilities, and filing all required paperwork. Whether you need to understand how to dissolve a corporation in New York or New Jersey, it’s imperative to take all of the proper […]

    Author: Christopher D. Warren

    Link to post with title - "How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide"
    Gross Lease vs. Net Lease: Understanding the Key Differences post image

    Gross Lease vs. Net Lease: Understanding the Key Differences

    Commercial leases can take a variety of forms, which is often confusing for both landlords and tenants. Understanding the different types, especially the gross lease structure, is important when selecting the lease that best suits your needs. One key distinction between lease types is how rent is calculated and paid. This article addresses the two […]

    Author: Robert L. Baker, Jr.

    Link to post with title - "Gross Lease vs. Net Lease: Understanding the Key Differences"
    What to Do If You Are Impacted by a Retailer Bankruptcy Part 2 post image

    What to Do If You Are Impacted by a Retailer Bankruptcy Part 2

    Over the past year, brick-and-mortar stores have closed their doors at a record pace. Fluctuating consumer preferences, the rise of online shopping platforms, and ongoing economic uncertainty continue to put pressure on the retail industry. When a retailer seeks bankruptcy protection, a myriad of other businesses are often impacted. Whether you are a supplier, customer, […]

    Author: Brian D. Spector

    Link to post with title - "What to Do If You Are Impacted by a Retailer Bankruptcy Part 2"
    The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business post image

    The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business

    Since his inauguration two months ago, Donald Trump’s administration and the Congress it controls have indicated important upcoming policy changes. These changes will impact financial services policies and priorities. The changes will particularly affect cryptocurrency, as well as banking rules and regulations. Key Regulatory Changes in Cryptocurrency For example, in the burgeoning cryptocurrency business environment, […]

    Author: Dan Brecher

    Link to post with title - "The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business"
    Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1 post image

    Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1

    The retail sector has experienced a wave of bankruptcy filings over the last year. Brick-and-mortar businesses in financial distress include big-name brands like Big Lots, Party City, The Container Store, and Vitamin Shoppe. When large retailers seek bankruptcy protection, they are not the only businesses impacted. Landlords can be particularly hard hit. While commercial landlords […]

    Author: Brian D. Spector

    Link to post with title - "Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1"

    No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

    Sign up to get the latest from our attorneys!

    Explore What Matters Most to You.

    Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

    Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

    Let`s get in touch!

    * The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

    Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!

    Please select a category(s) below: