Rule 41, When Any Judge Will Do

The concept of geographical jurisdiction of Magistrate Judges will be a faint memory if Chief Justice John Roberts gets his way. He’s forwarded proposed changes to Congress to amend Rule 41 of the Federal Rules of Criminal Procedure that will fundamentally alter the requirement that a warrant be issued by a judge within the jurisdiction of the place or thing to be searched.

The reason for the change was made abundantly clear by the refusal of a couple of Mags to play ball. The government was on a tear on Tor, and there were those archaic rules making its job hard.  Ars Technica explains:

For now, Rule 41 allows these junior judges to authorize electronic searches only within their own judicial district. This month alone, two federal judges in Massachusetts and Oklahoma suppressed evidence in two related child pornography cases because a magistrate in Virginia authorized the FBI to seize and operate Playpen, a Tor-hidden site, for 13 days. In so doing, investigators also deployed malware that disrupted Tor’s privacy protections and revealed over 1,000 true IP addresses, and lead to 137 prosecutions, including the two men in these two states. Given the success in those states, it seems plausible that other similar cases could also be jeopardized.

This is the flat world vision of law, where geography no longer matters, where barriers no longer exist and where technology makes it easier for people to conceal their location from prying fed eyes. The argument by law enforcement is that criminals, using Tor nodes for example, can conceal their locations, and thus prevent the government from knowing where to go to get that warrant.

So the changes to Rule 41 turns the problem back on those intent on concealing their locations; if you want to hide, then any judge will do. Sounds fair enough, so why is this a problem?

On the surface, the amendment to Rule 41 isn’t a mere procedural change, being “snuck” in below the radar. This is a fundamental shift in a fundamental concept, which is two “fundamentals” in one sentence. That’s a lot of fundamentals. Tethering a mag’s authority to venue, the geographic area of the district within which his authority applies, is a basic limitation.

But if this was just a matter of slipping in a change, even a fundamental change, by a process that few would notice, it might not be enough to generate much concern, no less outrage. What’s wrong with this change?  The Electronic Frontier Foundation explains:

If this rule change is not stopped, anyone who is using any technological means to safeguard their location privacy could find themselves suddenly in the jurisdiction of a prosecutor-friendly or technically-naïve judge, anywhere in the country.

While concealing one’s location may be a means used by criminals, it’s also a means used by people who choose to hide for legitimate, or even benign, reasons.

There are countless reasons people may want to use technology to shield their privacy. From journalists communicating with sources to victims of domestic violence seeking information on legal services, people worldwide depend on privacy tools for both safety and security. Millions of people who have nothing in particular to hide may also choose to use privacy tools just because they’re concerned about government surveillance of the Internet, or because they don’t like leaving a data trail around haphazardly.

This goes to the same trade-off reflected by the U.S. v. Apple debate, where the government kept pounding on the need to be able to hack into any phone to disclose evidence, at the expense of privacy. Here, the government’s contention is that it needs to be able to get into any computer, even if it doesn’t know where that computer physically resides, at the expense of geographical jurisdiction.

But at its core, the problem is that it enables the government to bring its warrant to a magistrate judge of choice, no matter where in the country that judge sits.  Whether it’s because the mag is prosecutor-friendly or technologically challenged, such that they can cobble together any computerish jargon they want, assured that the mag won’t have a clue what they’re talking about and will sign off because they’re baffled rather than persuaded, the government gets to pick.

Judge shopping. Remember those mags in Massachusetts and Oklahoma who recommended suppression of warrants issued outside the jurisdiction?  They won’t be getting a lot of warrant requests. The Mag’s Revolt?  Dead in the water. This is circumvention of judges who are either too internet savvy to be baffled by bullshit, or disinclined to sign anything the government puts in front of them.  They make the government sad. This rule change makes the government happy.

But so what, you say?  If those criminals choose to conceal their whereabouts by using Tor nodes, why should they be able to get away with it? Why should criminals using technology be able to thwart the government’s investigation by reliance on the archaic concept of geographical jurisdiction in this flat world?

It’s a good question, and ultimately comes down to an important value judgment: are we prepared to sacrifice the ability to maintain privacy so that the government can locate criminals using technological means to conceal their locations? Yup, the old privacy versus safety problem, which keeps recurring as tech changes the landscape for us and the government.

Some, particularly those who don’t concern themselves with privacy or have no clue what a Tor node is anyway, so won’t miss it when it’s gone, may well side with safety, with the government’s ability to find those bad dudes wherever they’re hiding. Others, who foresee that as privacy falls, step by step, in the name of safety, there will eventually be none left, may take a different position.

Still others will appreciate that judge-shopping, which is a flagrant evil in this proposal, will have deleterious effects on the integrity of the judiciary and the legal system. There always have been, and always will be, judges who favor, who trust, the government, and see their role as facilitating the government’s law enforcement function.

When there is nothing to stop the government from drinking from the same well, over and over, there will be no warrant that won’t be signed. It may be bad now, as far as the government getting its way, but it can always get worse.

Regardless of which side of this debate captures your attention, there is no question that this is a huge, substantive question that should be determined in full sunlight, and with robust debate.  Hey, it’s our future privacy at stake here. We might want to give a damn about it before a quickie rule change obliterates it forever.

14 thoughts on “Rule 41, When Any Judge Will Do

  1. Mike

    Does this rule change remove the agency of the people in electing their local judges if now judges from somewhere else across the country can issue warrants for their jurisdiction?

  2. Mike

    If this happens North Dakota is really going to have to update their warrant system. The white haired judges in those podunk towns are going to have phones ringing of the hook.

  3. st

    It’s not a privacy versus safety problem. A fundamental shift in a fundamental concept appears to enhance safety only if one refuses to tally the unsafe outcomes that will inevitably follow.

    Innocent people are harmed when warrants are issued for the wrong people or wrong address, yet these types of mistakes are already common and well documented. Privacy technology will continue to improve and there is every reason to expect the number of mistaken identities and location errors to go up under the new rule. For every additional criminal nabbed there will be some number of innocents harmed.

    Since we all commit three felonies a day already, this change extends the “pretext traffic stop” to pretext warrants. The use of any kind of privacy technology is enough to arouse suspicion, just pick a broad, vague felony from a very long list, find a friendly judge, and a warrant gets issued. Even if the privacy tech is something built into your latest gewgaw rather than an informed choice using it opens you up to judge shopping.

    How many innocents harmed versus additional criminals caught is a difficult question, but a better one than safety versus privacy. Given that Americans today are eight times more likely to die in a police encounter than by the hand of terrorists, those arguing that the rule change will improve safety have a lot of ground to cover.

  4. Mike

    Even the post 9/11 changes to Rule 41(b) didn’t try to change the district-based limiting language, which seems like an acknowledgement that it is indeed based on a fundamental principle. The 1944 committee who wrote the original rule said that it was a codification of existing practice, which also speaks to the fundamental nature of the limitation.

    I wonder, because I haven’t seen the issue addressed in any of the discussion about this proposal, if it’s related to the intense concern the founders had with retaining some kind of local knowledge in criminal procedure, e.g. through the vicinage clause?

    1. SHG Post author

      I can’t imagine how the vicinage clause comes into play, but you raise an interesting question. No doubt a constitutional scholar would have something more to offer, but I do not.

      1. Mike

        I didn’t mean that the vicinage clause came into play in this rule, I was just using it as an example of geographical limitations in criminal procedure that are (or used to be) seen as crucial checks on federal power. The limitation on which magistrate judges can issue warrants seems to be of the same flavor, which is an argument for keeping it that I haven’t seen.

  5. Federico Wibmer

    I guess just using Tor for something the gov’t thinks may be illegal will be enough for probable cause soon, if it’s not already, and “where activities related to a crime may have occurred” seems broad enough to issue a warrant for just about anyone.

    1. SHG Post author

      Pretty much. Maybe Tor+ at most. After all, if you’re not a criminal, what do you have to hide?

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