Google has opposed moves by the U.S. Department of Justice to extend the warrant issuing authority of magistrate judges to searches of computers in districts other than their own.
Innocuous as that may sound, Google is concerned that the proposed amendment would likely end up being used by U.S. law enforcement to directly search computers and devices anywhere in the world.
There is nothing in the proposed change to the Federal Rule of Criminal Procedure 41 that would prevent access to computers and devices worldwide, wrote Richard Salgado, Google’s legal director for law enforcement and information security, in a blog post Wednesday.
The rule currently gives authority to a judge in a district to issue a warrant to search for and seize a person or property located within the district, with certain exceptions.
The amendment would allow a magistrate judge of the location, where activities relating to a crime may have occurred, the authority to issue a warrant “to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district,” if the location of the media is concealed using technology or the media are protected computers that have been damaged without authorization and are located within five or more districts.
The little known Advisory Committee on the Federal Rules of Criminal Procedure proposed the amendment and the last day for comments was Tuesday. The move to amend Rule 41 has been opposed by a number of privacy and civil rights groups. Google also filed its comments.
The Department of Justice in a submission in 2013 argued that it is becoming difficult to identify the location of a computer suspected to be involved in a crime, as criminals are, for example, increasingly using anonymizing techniques. Criminals are also using multiple computers in multiple districts simultaneously and effective investigation and disruption of their schemes requires remote access to the Internet-connected devices in many districts.
The DOJ gave the example of a large investigation into a botnet of compromised computers under a central control that could require investigations in a large number of districts. Obtaining warrants in all the districts simultaneously would be practically impossible, it said.
The U.S. has diplomatic arrangements with many countries, called Mutual Legal Assistance Treaties (MLATs), for cross-border crime investigations. The repercussions of the amendment on relations with other countries should be addressed by the U.S. Congress and the President, not the Advisory Committee, Google said.
The definition of “remote search” and under what circumstances and conditions it can be undertaken are not specified by the amendment, according to Salgado. “It carries with it the specter of government hacking without any Congressional debate or democratic policymaking process,” he added.
The reference to obscuring a location using technology would also bring under the amended rule a whole number of computers that use VPNs (virtual private networks), used by businesses like banks, online retailers and communications providers, according to Salgado. VPNs can conceal the actual location of a network, “and thus could be subject to a remote search warrant where it would not have been otherwise,” he wrote.