U.S. judges will be able to issue search warrants giving law
enforcement agents power to access computers in any jurisdiction, potentially
even overseas, under a controversial rule change likely to be approved by the
Supreme Court by May 1.

Magistrate judges can normally only order searches within the
jurisdiction of their court, which is typically limited to a few counties.

The U.S. Justice Department, which is pushing for the rule
change, has described it as a procedural change needed to modernize the
criminal code for the digital age, and has said it would not permit searches or
seizures that are not already legal.

Google, owned by Alphabet Inc, and civil liberties groups such
as the American Civil Liberties Union and Access Now, contend the change would
vastly expand the ability of the Federal Bureau of Investigation to hack into
computer networks. They say it could run afoul of the U.S. Constitution’s
protections against unreasonable searches and seizures.

Should the Supreme Court approve the change, it will take effect
later this year unless both chambers of Congress act to reject or amend it, a
move seen as unlikely given gridlock in the legislature ahead of the U.S.
presidential election.

The proposed amendment is to Rule 41 of the federal rules of
criminal procedure, a text governing the judicial branch that is regularly
updated. It was at the center of two court opinions issued this month throwing
out evidence gathered by FBI sting operations targeting child pornographers who
relied on the anonymous Internet browser called Tor network.

Federal courts in Virginia and Oklahoma said the FBI’s use of a
warrant to deploy a “network investigative technique” on computers outside the
geographic bounds of the issuing judge’s district was invalid.

A Justice Department spokesman pointed to those cases as reason
for why changes to Rule 41 are necessary. 

Though it has been several years in the making, the effort to
widen warrant jurisdiction has not garnered the level of attention of other
recent clashes over government access to digital information, such as the FBI’s
standoff with Apple over encryption.

Congress would have until December 1 to reject or amend a change
to Rule 41.

Senator Ron Wyden, an Oregon Democrat, has vowed to mobilize
opposition to the Rule 41 update. Sources familiar with his plans say he is
expected to announce he is working on legislation to block the changes if they
earn approval from the Supreme Court.

“This rule change could potentially allow federal investigators
to use one warrant to access millions of computers, and it would treat the
victims of the hack the same as the hacker himself,” Wyden said during a speech
last month at a digital rights conference in San Francisco.

HISTORY OF DEFERENCE

Proposed changes to the criminal procedure rules go through
several layers of vetting by committees comprised of lawyers and judges before
reaching the Supreme Court.

The review of the Justice Department’s Rule 41 proposal, which
was first drafted in 2013, led to it being pared back to only apply in situations
when a suspect can be shown to be using technology to conceal the location of
his or her computer or for an investigation into a network of hacked or
infected computers, such as a botnot.

The Supreme Court rarely rejects such proposals to change federal
rules, according to lawyers familiar with the process.

Google and other opponents say the Rule 41 proposal amounts to a
“substantive” change to the rules, and therefore should be properly debated in
Congress.

The
change “raises a num­ber of mo­nu­ment­al and highly com­plex
con­sti­tu­tion­al, leg­al, and geo­pol­it­ic­al concerns,” Richard Salgado,
Google’s director for law enforcement and information security, wrote in public
comments submitted in February 2015.