A Warrant to Hack: an Analysis of the Proposed Amendments to Rule 41 of the Federal Rules of Criminal Procedure

In 2013, a federal magistrate judge denied an FBI request for a remote access search warrant, concluding that, among other deficiencies, Rule 41 of the Federal Rules of Criminal Procedure prevented him from granting a warrant to hack a computer when the location of the device was not known. Just five months later, the DOJ proposed amendments to Rule 41 seeking to eliminate the territorial limits on search warrants in two cybercrime contexts: (1) when suspects conceal their online locations and identities; and (2) when malware affects users in five or more districts. Despite approval from the necessary judicial committees and conferences, the amendments must now survive review by the Supreme Court and Congress. While the government argues that the amendments represent small but necessary changes, critics raise a number of farreaching legal and policy concerns, labeling the amendments as the legalization of "New Invasive Global Hacking Powers." This paper seeks to impartially present and evaluate both sides of the argument. This Article offers concrete alterations to the amendments, which ensure that law enforcement agencies are able to effectively investigate and prosecute cybercrimes while simultaneously protecting privacy, safeguarding civil liberties, and guaranteeing that remote access search warrants do not become ubiquitous tools of surveillance.