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Justice Department proposal for computer search warrants raises hackles

| Friday, March 13, 2015, 10:21 p.m.

WASHINGTON — A Justice Department proposal that could make it easier to locate and hack into computers that are part of criminal investigations is raising constitutional concerns from privacy groups and Google, who fear the plan could have broad implications.

Federal prosecutors say their search warrant proposal is needed at a time when computer users are committing crimes in online anonymity while concealing their locations. But civil libertarians fear the rule change, under consideration by a federal advisory committee, would grant the government expansive powers to reach into computers across the country.

The proposal would change rules of criminal procedure that, with limited exceptions, permit judges to approve warrants for property searches only in the districts where they serve. The government says those rules are outdated in an era when child pornographers, drug traffickers and others can mask their whereabouts on computer networks that offer anonymity. Such technology can impede or thwart efforts to pinpoint a suspect's geographic location.

The Justice Department wants the rules changed so judges in a district where “activities related to a crime” have occurred could approve warrants to search computers outside their districts. The government says that flexibility is needed for cases in which the government can't figure out the location of a computer and needs a warrant to access it remotely, and for investigations involving botnets — networks of computers infected with a virus that spill across judicial districts.

“There is a substantial public interest in catching and prosecuting criminals who use anonymizing technologies, but locating them can be impossible for law enforcement absent the ability to conduct a remote search of the criminal's computer,” Justice Department lawyers wrote.

The advisory committee considering the rule change is meeting this month.

The proposal has generated fierce pushback from privacy organizations, including the American Civil Liberties Union, which contend the rule change could violate a constitutional requirement that search warrant applications be specific about the property to be searched. They argue the proposal is unclear about exactly what type of information could be accessed and fails to guarantee the privacy of those not under investigation who might have had access to the same computer as the target, or of innocent people who may themselves be victims of a botnet.

“What procedural protections are going to be in place when you do these types of searches? How are they going to be limited?” asked Alan Butler, senior counsel at the Electronic Privacy Information Center.

Another critic, Google, says the proposal “raises a number of monumental and highly complex constitutional, legal and geopolitical concerns that should be left for Congress to decide.”

Privacy groups are concerned the proposal would lead to more frequent use by the FBI of surveillance technology that can be installed remotely on a computer to help pinpoint its location.

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