EPIC Senior Counsel Alan Butler will testify this week before the Judicial Conference Advisory Committee on Rules of Criminal Procedure regarding a proposed amendment to Rule 41, which governs the issuance of warrants by federal judges. The proposed amendment to Rule 41 would authorize judges to issue warrants permitting a law enforcement officer to use "remote access" to search digital files. Under the amended rule, these remote access or "computer hacking" warrants could be issued (1) in any case where the target device uses an Internet anonymizing service such as Tor, or (2) to search computers that are part of a botnet. In a written statement, EPIC's Butler argued that the proposed changes are not consistent with the Fourth Amendment because (1) there would be no notice prior to the search and (2) officers would not be required to show that delayed notice is necessary. EPIC previously filed an amicus brief in a federal appeals court, arguing that service of a warrant by fax violated a core procedural protection of the Fourth Amendment. For more information, see EPIC: United States v. Bach.
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