Saturday, May 14, 2016

Amendment to Rule 41, Title 28, Section 2072 of the US Code Extending 1st Amendment Rights Violations Made Possible By The Patriot Act

An extremely dangerous amendment to Rule 41 of the Federal Rules of Criminal Procedure (Title 28, Section 2072 of the United States Code, which defines the procedural rules for the implementation of the US Constitution) affecting how Search and Seizure warrants can be issued, has been ordered by the US Supreme Court. The changes go into effect December 1st of this year unless Congress rejects the amendment. The changes to Rule 41, could provide a legal loophole that could be used to violate 1st Amendment rights, based on the frequent 1st amendment violations already being committed by the NSA under the Patriot Act. Those excesses are currently under review, and pending legislation is expected to rectify them, but this amendment to the United States Code will make those reforms pointless because the rule change will have the same practical effect.

Although Rule 41 specifies how warrants are issued, the changes to the rule would also affect procedures used in those situations in which search and seizure are legal without a warrant.

One problem with the changes is that the new rules assume that attempts to maintain online privacy, such as disabling the ability for computers and cell phones to report their location, using network services such as TOR and VPNs, all constitute evidence of criminal intent. While these technologies are used to hide criminal activity, they are far more commonly used to protect individuals from malware attacks and identity theft, to enable secure online shopping, for off-site data backups, and to provide privacy and data security for cloud-based services including various virtual meeting and conferencing software packages, online seminars, online support services in which support companies use remote control software to access customer computers, people taking online classes, voice-over-IP technology (which enables my cell phone to work in areas where my phone company doesn't provide service), Skype visual telephone and teleconferencing, and applications that create massively parallel virtual supercomputers for weather forecasting, investment research, and scientific research. In fact, there are so many pervasive and legitimate uses for this technology that criminal activity probably constitutes a fraction of one percent of all such traffic.

Microsoft recently (2014) embarrassed itself and exposed itself to extreme financial risk by grossly underestimating the legitimate use of a dynamic DNS service in an attempt to shut down two people who were running a botnet to steal credit card information from people using Microsoft Wallet. Microsoft, using flawed reasoning very similar to the reasoning behind the upcoming changes to Rule 41, talked a naive judge into issuing a court order that enabled Microsoft to intercept a free dynamic DNS service. In asking for the court order, Microsoft assumed most of the affected traffic was related to the criminal activity affecting them, however, they failed to mention that the participating computers in the botnet belonged to roughly 5,000 innocent people, and their action, done illegally in secret (which the judge would never have allowed had Microsoft presented him with accurate information) shut down approximately 5,000,000 internet servers, each providing various important services to large groups of people. I am amazed Microsoft appears to have gotten out of their extreme mistake with only an apology! (I understand they did capture the two criminals, which is good, but their action caused far more disruption to than it stopped.)

However Microsoft's action did not harm any computers, and the disruption they unintentionally caused only lasted three days. The effects of Rule 41 will necessarily involve installing malware on the computers of millions of innocent people, not only within US Jurisdiction but worldwide, which will not only violate the US Constitution but will also violate a number of US Treaty obligations to foreign allies. Of the computers infected, all will run just a little slower as a result of installing the Government's spyware, some equipment, which may be far more than anticipated, will be permanently damaged, and possibly worst of all, the US Government has a HORRIBLE track record of implementing technologies that give our enemies (including everyone from petty criminals to enemy nations) access to the computers they tap for their own purposes.

The court system is far-outreaching both its authority and its [technical] competence in enacting such an invasive rule change. Even if such surveillance is possible without violating the US Constitution, the technology involved is too new to be safely hacked even by those with the best intentions. It can be assumed at this stage, that any benefit that might be gleaned from this rule change would be greatly outweighed by the unintended injustices that would result from its use.

Rather than usurping the authority of the legislature while it violates the US Constitution and Foreign treaty obligations, it would be better to leave any changes of this magnitude to the US legislature, where the implications of such drastic change can be considered, weighed, and openly and publicly debated, as our Constitution requires.

(not attempting to document everything I wrote, but here are some of my more important sources of information)

Cardozo, N. (2014, July). What Were They Thinking? Microsoft Seizes, Returns Majority of’s Business. Retrieved from

Reitman, R. (2016, April). With Rule 41, Little-Known Committee Proposes to Grant New Hacking Powers to the Government. Retrieved from

Stepanovich, A. (2009). Testimony of Amie Stepanovich Senior Policy Counsel, Access on behalf of Access and the Electronic Frontier Foundation Before the Advisory Committee on Criminal Rules on the Matter of Proposed Amendments to the Federal Rules of Criminal Procedure, Rule 41. Retrieved from

Supreme Court of the United States. Proposed Amendments to Criminal Rules 4, 41, and 45 of the Federal Rules of Criminal Procedure in Section 2072 of Title 28, United States Code (2016). USA. Retrieved from

1. That the Federal Rules of Criminal Procedure be, and they hereby are, amended by including therein amendments to Criminal Rules 4, 41, and 45. [See infra pp. .]
2. That the foregoing amendments to the Federal Rules of Criminal Procedure shall take effect on December 1, 2016, and shall govern in all proceedings in criminal cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.
3. That THE CHIEF JUSTICE be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Criminal Procedure in accordance with the provisions of Section 2072 of Title 28, United States Code.

(I don't think my software correctly formatted my court order citation, but I think all the important information is supplied, regardless.)

1 comment:

David Lloyd said...

I dated this blog post using the date it was originally written, which was Jun 02, 2016, however, this entry was not actually posted until today, Jun 11, 2017.

David Lloyd