Federal prosecutors and privacy advocates are currently battling over a Department of Justice (DOJ) proposal for obtaining search warrants more easily in order to locate and hack into computers.
The DOJ contends that the ability of cybercriminals to commit crimes anonymously from concealed locations anywhere in the world severely hampers their ability to find, catch and prosecute these criminals. Drug traffickers, identity thieves, child pornographers and others using computers in the commission of their crimes hide themselves and their whereabouts in order to thwart law enforcement.
Consequently, the DOJ is requesting a change in federal criminal procedure. The current procedure for obtaining a search warrant requires that the judge issuing the warrant do so only in the district where he/she serves. This presents an obvious problem in cybercrime when criminal investigators do not know the location of the computer or criminal. The DOJ proposal calls for greater flexibility in that a judge in a district where “activities related to a crime” have occurred may issue warrants to search computers outside his/her district.
DOJ lawyers stress the need for flexibility allowing remote searches of criminals’ computers and for investigating botnets, networks of virus-infected computers oblivious to judicial district boundaries: “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.”
Privacy advocates reacted strongly against the proposal. Google, the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC) are all wary the proposed change on several grounds: it would effectively grant new governmental powers to remotely access computers across the United States; it might violate the constitutional mandate that search warrants must specify the property to be searched; there is no specificity about the type of information that could be accessed; it does not guarantee the privacy of persons not under investigation but using the alleged criminal’s computer; it does not guarantee the privacy of innocent victims of botnets.
The DOJ claims that privacy advocates’ worries are unwarranted. They assert that the proposed change would merely ensure that investigators can obtain a warrant when they cannot find the criminal or the computer and that it would not provide new technology to authorities.
The proposal was made to the criminal procedure advisory committee of the Judicial Conference of the United States. If proposal is approved by the advisory committee and the Judicial Conference, it will be forwarded to the Supreme Court and eventually to Congress. Congress cannot approve the procedural change but can block it.
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