The Internet has definitely changed the legal landscape by blurring the boundaries of geophysical territories. It has made the world both a smaller and bigger place, and the law is having a bit of trouble trying to catch up. Sometimes, in scrambling to adjust to the times, governments overreact and try to claim overarching powers. Such might be the case with the proposed amendment to the Federal Rule of Criminal Procedure 41, which could allow the government to remotely access computers even in other countries.
The current form of Criminal Procedure 41 only allows judges to grant warrants that cover their own legal jurisdiction. This prevents authorities from overstepping their boundaries and limiting their powers. The Department of Justice, however, sees a problem here when it comes to producing search warrants for computers that have been allegedly used in a crime. Such computers might be located elsewhere or could be hiding behind proxies that take them out of that jurisdiction. The proposed amendment, then, tries to rectify this situation by allowing judges to grant warrants to remotely access, in other words hack, computers outside their jurisdiction if such computers are either “concealed through technological means” or are instrumental in a botnet investigation.
That might sound reasonable as part of the process of conducting an investigation, but it is the unwritten implications that has Google worried and sounding the alarm. Despite those explicit two cases, the amendment would give the government almost boundless authority to search computers anywhere. And it doesn’t just stop in the US. The changes don’t even qualify the computers have to be in the country. In fact, many computers of interest to the government might be located in other parts of the world. The amendment would then open a can of worms that would violate the sovereignty of many nations and would further strain US ties which have already taken a hit from Snowden’s whistleblowing.
Some might say that companies like Google have a vested interest in opposing such a change given their own international relations and businesses will be adversely affected. Google, for its part, doesn’t deny that its business does involve providing services around the world and even establishing infrastructures in other countries, which will be fair game if this amendment is approved. That, of course, doesn’t make them any less right about the dangers such unqualified powers may bring.
Google also points out that the Advisory Committee on the Rules of Criminal Procedure, which is probably not so known before this proposal, isn’t the right entity to propose such changes. Nor should it be the Department of Justice, given it will be serving its own interests. Given the possible reach beyond the nation’s geographical and judicial borders, the discussion should be held in Congress first, and not in some small committee.