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Why changes to the Federal Rules of Criminal Procedure are causing alarm

While the majority of recent news coverage has understandably been focused on the planned appointments of President-elect Donald Trump, it could be argued that this extensive reporting has perhaps come at the expense of other important events.

By way of example, consider the general lack of coverage on a major development that has generated considerable debate among both members of Congress and the legal community at large, and which will undoubtedly serve to alter the legal landscape as it relates to Fourth Amendment rights.

The development in question is none other than the amendments to Rule 41 of the Federal Rules of Criminal Procedure, which outlines the rules and regulations governing the issuance of search and seizure warrants.

Under the amendments, which officially took effect on December 1, federal judges are now vested with the authority to issue search warrants authorizing federal hacking into digital devices that may or may not be located within their district.

Furthermore, the amendments to Rule 41 now enable federal judges to issue warrants granting federal law enforcement officials permission to hack the digital devices of those who have been victimized by malware -- regardless of their location.

As to why these changes were sought, the rationale was that unlike traditional criminal activity, online criminal activity is often difficult -- even impossible -- to pinpoint to a precise geographic location, such that a warrant could not realistically be confined to a particular jurisdiction overseen by a particular federal judge 

Regarding malware, the justification was similar in that tracking down those responsible for disseminating malware often necessitates hacking into the botnets created by the malware found on the computers of victims, the majority of whom are spread all over the U.S.

While the Department of Justice has stood by the amendments expanding the ability of federal judges to allow "remote searches," a bipartisan group of lawmakers is decrying the changes to Rule 41, calling them an intrusion on constitutional rights that should have been subjected to vigorous public debate.

"The government won't tell the Congress or the American people how it would protect those rights, or how it would prevent collateral damage, or even how it would carry out these hacks," said Sen. Ron Wyden (D-OR) of the absence of an hearings. "In effect, the policy is, 'trust us.'"

It will be fascinating to see whether this extremely important issue starts to gain the attention it deserves in the coming months or years. In the meantime, people's digital devices could be hacked by federal law enforcement officials without their knowledge or their consent.

Stay tuned for updates …

If you are under investigation or have been charged with any type of federal crime, consider speaking with a skilled legal professional as soon as possible.  

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