Rule 41 Amendments Provide for a Drastic Expansion of Government Authority to Conduct Computer Searches and Should Not Have Been Adopted by the Supreme Court

Markus Rauschecker

Advances in technology have created gaps in the law that hinder the capabilities of law enforcement to conduct its investigations and prosecute criminals. Prior to December 1, 2016, such a gap existed in Rule 41 of the Federal Rules of Criminal Procedure. As it was written, the Rule contained a territorial limitation on a magistrate judge's ability to issue a search warrant and limited law enforcement's ability to successfully apply for search warrants targeting internet-connected computers. With a few exceptions, magistrate judges were authorized to issue warrants only when the warrant was to be executed within the judge's district. This territorial limitation presented a problem for law enforcement as more and more online users began employing technological tools to hide their locations. When law enforcement was unable to clearly identify the location of a computer it wanted to search, judges were hesitant to issue search warrants, because they were concerned that the computer could be located outside of their district and the warrant would, therefore, run afoul of the territorial limitation of Rule 41.