US Supreme Court Approves Rule To Let US Judges Issue Warrants For Computer Access In Any Jurisdiction But Constitutional Issues Remain Unresolved

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBThe legal landscape in United States (US) is fast changing. Part of this can be attributed to the ongoing election campaign while part of it is due to the modernisation of the antique laws of US. Recently an e-mail privacy bill was unanimously passed by the US house. The bill requires the law enforcement authorities to obtain a search warrant before asking technology companies to hand over old e-mails.

Now it has been reported that on Thursday, the US Supreme Court approved a change to Rule 41 of the Federal Rules of Criminal Procedure. The current law in US requires law enforcement agencies of US to know where a computer is before they can get a warrant to directly hack the machine. This is required to ensure that jurisdiction of the concerned judge is not exceeded by issuing a warrant regarding a territory beyond the judge’s powers and jurisdiction.

Now the proposed amendments in the rules would no more require compliance with this requirement and the law enforcement agencies would be free to use a single search warrant to infiltrate any system anywhere in the world. This is another way of saying that law enforcement agencies of US would now have long arm jurisdiction to target any computer or device located in any country including India.

US Chief Justice John Roberts transmitted the rules to Congress, which will have until December 1 2016 to reject or modify the changes to the federal rules of criminal procedure. If Congress does not act, the rules would take effect automatically. The US Justice Department, which has pushed for the rule change since 2013, has described it as a minor modification needed to modernise the criminal code for the digital age, and has said it would not permit searches or seizures that are not already legal.

However, this claim of Justice Department is far from truth. When law enforcement agencies are empowered to target global audience, then civil liberty issues are bound to arise. This is a major amendment in the criminal jurisprudence of US and it cannot be brushed aside as a simple amendment or modification. Looking from another perspective, this modification/amendment is prima facie in direct conflict with civil liberties protection in cyberspace and would give rise to conflict of laws in cyberspace in various jurisdictions.

In fact, 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 Federal Bureau of Investigation’s (FBI) ability to conduct mass hacks on computer networks. They say it also could run afoul of the US Constitution’s protections against unreasonable searches and seizures. Not only this, a hacking adventure or unauthorised search conducted by FBI or any other law enforcement agency of US upon Indian computers and systems would also violate the provisions of Indian Constitution.

In addition, the proposed rule would also allow the FBI and others to hack into victims’ computers that have already been compromised by cyber-criminals. This is being billed as a measure to help track down the operators of botnets but its legal consequences are far greater than this objective. It is clear that FBI is targeting privacy and anonymity tools to keep a tab on online transactions and dealings. It has also been disclosed that the former Tor developer created malware for the FBI to hack Tor users. FBI has also informed that it would not disclose how it hacked the Apple’s iPhone and Tor network. However, the evidence collected by such Tor hack was disallowed by the judge of a US court. Let us wait and watch how developments would take place in this regard in the year 2017.

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