In public comments submitted to the Judicial Conference Advisory Committee on Criminal Rules, Google Law Enforcement and Information Security Director Richard Salgado voiced the company's opposition to an amendment proposed by the committee in August to Rule 41 of the Federal Rules of Criminal Procedure.
Currently, federal prosecutors must generally seek a warrant in the judicial district to search for and seize property located within the district. Under the proposed amendment, which was prompted by a request filed by the U.S. Department of Justice, courts would be permitted to issue warrants authorizing remote access to electronic data in cases where the location of the information has been "concealed through technological means" or when the data is located in five or more districts.
But in its comments, Google contended that easing territorial limitations on the government's search and seizures power would "substantively expand" its existing authority and raise a "number of monumental and highly complex constitutional, legal and geopolitical concerns."
"Despite the [DOJ's] weak assurance that the amendment does 'not purport' to expand the current scope of Rule 41 [to allow for access to data located in foreign countries], in reality, it will: The nature of today's technology is such that warrants issued under the proposed amendment will in many cases end up authorizing the government to conduct searches outside the United States," the comments said.
The DOJ has attempted to counter criticism that it is trying to unfairly extend its authority abroad by arguing that search and seizure activities covered by Rule 41 do not occur until the government actually examines the data. But Google urged the rules committee to reject the logic on the grounds that the rule is triggered when the data is accessed.
"Therefore, where the government accesses servers located abroad to obtain information pursuant to a Rule 41 warrant, there is no doubt that a seizure of such data will occur outside U.S. territorial limits," the comments said.
Aside from allowing unfettered access to data located in jurisdictions abroad that have their own rules governing search and seizure, the amendment would also impose upon the constitutional rights of targets within the U.S. by expanding the scope of law enforcement searches, weakening the Fourth Amendment's particularity and notice requirements and opening the door to potentially unreasonable searches and seizures, Google asserted.
If such an expansion to the rule is necessary, Google argued that it should be done through congressional lawmaking, and not by the unilateral work of the committee, noting that the two exceptions to Rule 41 that currently allow for searches outside the issuing district were both the result of congressional action under the Patriot Act.
"Legislation, not rulemaking, is the proper way to balance legitimate law enforcement needs with serious constitutional and policy considerations," the letter said, adding that the proposed amendment also raises thorny questions over the nature and scope of searches that would be permitted.
Google's feedback, which was among 46 comments that the committee received on the rule, echoed the sentiments expressed by several other groups, including the American Civil Liberties Union and the National Association of Criminal Defense Lawyers.
In its comments, the ACLU recommended that the committee exercise "extreme caution" before granting the government new authority to remotely search individuals' electronic data, warning that the amendments could expand the government's power to engage in computer hacking in the course of criminal investigations, while the defense lawyer association spoke out against the amendment's failure to address the Fourth Amendment implications of allowing extraterritorial search warrants.
"By attempting to bring such searches within the conventional framework of Rule 41, the proposal disrupts fundamental balances of jurisdiction and traditional warrant requirements based upon an analysis of what is most expeditious for law enforcement, while turning a blind eye to the inescapable conclusion that these aggressive digital interventions, which both exploit vulnerabilities in the Internet and deliberately create new ones, have technological, political and constitutional implications far beyond the simple mechanics of their application to a specific law enforcement goal," the association said.
--Editing by Katherine Rautenberg.
