Digital Searches and Seizures: Overview of Proposed Amendments to Rule 41 of the Rules of Criminal Procedure [September 8, 2016] [open pdf - 581KB]
"With the Rules Enabling Act, Congress granted to the Supreme Court the authority to write federal rules of procedure, including the rules of criminal procedure. After several years of evaluation by the Judicial Conference, the policy-making arm of the federal judiciary, on April 28, 2016, the Supreme Court transmitted to Congress proposed changes to Rule 41 of the Federal Rules of Criminal Procedure. These proposed changes would amend the federal search and seizure rules in two ways. First, they would permit the government to remotely access electronic devices although the location of the device may be unknown. This issue has become more pressing in recent years with an increasing number of users anonymizing their communications, hindering the government's ability to pinpoint the location of the target, and thus making it difficult to discern the appropriate federal court to apply for a search warrant. Second, they would permit DOJ [Department of Justice] to search multiple computers in numerous districts as part of a large-scale investigation of computer crimes. In recent years, a tension has arisen between Rule 41 as currently drafted and the Department of Justice's (DOJ's) desired use of the rule for digital searches. [...] This report provides a brief overview of the proposed amendment to Rule 41. First, it provides background on the origin of, and rationale underlying, the proposed amendment and a description of the rule as currently written. Second, it reviews the potential changes made by the proposed amendment and surveys various concerns commenters have raised with the proposal."
CRS Report for Congress, R44547