US Courts Seek Public Comment on Proposed Amendments to Court Rules

by Shannon Allen

The United States Courts (“USC”) announces public hearings of the Judicial Conference Advisory Committee and seeks comment on proposed amendments to the Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure.  The USC requested that these proposals be circulated to the bench, bar, and the public for comment.  The Advisory Committees on Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure have proposed  amendments to multiple rules and forms, including, but not limited to: Criminal Rules 4, 41, and 45. (See list of proposed amendments at: http://www.uscourts.gov/rulesandpolicies/rules/proposed-amendments.aspx.)

In particular, with regard to Criminal Rule 41, the proposed amendment “provides that in two specific circumstances a magistrate judge . . . has authority to issue a warrant” to utilize “remote access to search electronic storage media” and to “seize . . . electronically stored information even when that media . . . is . . . located outside of the district.” The first circumstance is where a “warrant sufficiently describes” the computer law enforcement wishes to search, but the computer is located in an unknown district; making it impossible to identify a physical location or judicial district for the computer.  (e.g. child pornography may be shared through proxy services created to conceal their true IP address.)  The second circumstance is where complex criminal activities utilize many computers in multiple districts at the same time. (e.g. a collection of compromised computers can operate as botnets to disseminate malware, invade privacy of users, and steal personal information.)  The Advisory Committee views Rule 41 in its current state as potentially hampering the investigation of serious federal crimes and proposes narrowly tailored amendments to address these two increasingly common venue circumstances. 

The proposed amendment changes the “territorial limitation that is presently imposed” by Rule 41(b) and states that a magistrate judge “with authority in any district where activities related to a crime may have occurred” may issue a warrant that meets the criteria in the proposed new paragraph.  The Committee proposes relaxing the venue requirements “when the district where the media or information is located has been concealed through technological means,” so long as investigators can satisfy the Fourth Amendment’s warrant requirements.  In addition, for restricted types of investigations, the proposed amendments would “eliminate the burden of attempting to secure multiple warrants in numerous districts.”  Finally, the proposed amendments change the notice requirements only requiring that when the “search is by remote access, reasonable efforts be made to provide notice to the person whose information was seized or whose property was searched.”

The USC seeks comment on these proposed amendments to the Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure.  Public hearings are scheduled to be held on the amendments to:

• Appellate Rules and Forms in Phoenix, Arizona, on January 9, 2015, and in Washington, DC, on February 12, 2015; 
• Bankruptcy Rules and Official Forms in Washington, DC, on January 23, 2015, and in Pasadena, California, on February 6, 2015; 
• Civil Rules in Washington, DC, on October 31, 2014, and in Phoenix, Arizona, on January 9, 2015; and 
• Criminal Rules in Washington, DC, on November 5, 2014, and in Nashville, Tennessee, on January 30, 2015.

Those wishing to testify should contact the Secretary at the address below in writing at least 30 days before the hearing.  

Jonathan C. Rose, Secretary

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

Thurgood Marshall Federal Judiciary Building

One Columbus Circle NE., Suite 7-240

Washington, DC 20544

Telephone (202) 502-1820.

All written comments and suggestions with respect to the proposed amendments may be submitted on or after the opening of the period for public comment on August 15, 2014, but no later than February 17, 2015. Written comments must be submitted electronically, following the instructions provided at: http://www.uscourts.gov/rulesandpolicies/rules/proposed-amendments.aspx. In accordance with established procedures, all comments submitted are available for public inspection.